The Case of theA reprint of Lon L. Fuller's 1949 article
By Lon Fuller
62 Harv. L. Rev. 616 (1949)
The Harvard Law Review Association
[original page number 1851]
THE CASE OF THE SPELUNCEAN EXPLORERS
In the Supreme Court of Newgarth, 4300
The defendants, having been indicted for the crime of murder, were convicted and sentenced to be hanged by the Court
of General Instances of the County of Stowfield. They bring a petition of error before this Court. The facts sufficiently
appear in the opinion of the Chief Justice.
Truepenny, C. J. The four defendants are members of the Speluncean Society, an organization of amateurs interested in
the exploration of caves. Early in May of 4299 they, in the company of Roger Whetmore, then also a member of the
Society, penetrated into the interior of a limestone cavern of the type found in the Central Plateau of this
Commonwealth. While they were in a position remote from the entrance to the cave, a landslide occurred. Heavy
boulders fell in such a manner as to block completely the only known opening to the cave. When the men discovered
their predicament they settled themselves near the obstructed entrance to wait until a rescue party should remove the
detritus that prevented them from leaving their underground prison. On the failure of Whetmore and the defendants to
return to their homes, the Secretary of the Society was notified by their families. It appears that the explorers had left
indications at the headquarters of the Society concerning the location of the cave they proposed to visit. A rescue party
was promptly dispatched to the spot.
The task of rescue proved one of overwhelming difficulty. It was necessary to supplement the forces of the original
party by repeated increments of men and machines, which had to be conveyed at great expense to the remote and isolated
region in which the cave was located. A huge temporary camp of workmen, engineers, geologists, and other experts
was established. The work of removing the obstruction was several times frustrated by fresh landslides. In one of these,
ten of the workmen engaged in clearing the entrance were killed. The treasury of the Speluncean Society was soon
exhausted in the rescue effort, and the sum of eight hundred thousand frelars, raised partly by popular subscription and
partly by legislative grant, was expended before the imprisoned men were rescued. Success was finally achieved on the
thirty-second day after the men entered the cave.
Since it was known that the explorers had carried with them only scant provisions, and since it was also known that
there was no animal or vegetable matter within the cave on which they might subsist, anxiety was early felt that they
might meet death by starvation before ac [original page number 1852] cess to them could be obtained. On the twentieth day of their
imprisonment it was learned for the first time that they had taken with them into the cave a portable wireless machine
capable of both sending and receiving messages. A similar machine was promptly installed in the rescue camp and oral
communication established with the unfortunate men within the mountain. They asked to be informed how long a time
would be required to release them. The engineers in charge of the project answered that at least ten days would be
required even if no new landslides occurred. The explorers then asked if any physicians were present, and were placed
in communication with a committee of medical experts. The imprisoned men described their condition and the rations
they had taken with them, and asked for a medical opinion whether they would be likely to live without food for ten
days longer. The chairman of the committee of physicians told them that there was little possibility of this. The wireless
machine within the cave then remained silent for eight hours. When communication was re-established the men asked to
speak again with the physicians. The chairman of the physicians' committee was placed before the apparatus, and
Whetmore, speaking on behalf of himself and the defendants, asked whether they would be able to survive for ten days
longer if they consumed the flesh of one of their number. The physicians' chairman reluctantly answered this question in
the affirmative. Whetmore asked whether it would be advisable for them to cast lots to determine which of them should
be eaten. None of the physicians present was willing to answer the question. Whetmore then asked if there were among
the party a judge or other official of the government who would answer this question. None of those attached to the
rescue camp was willing to assume the role of advisor in this matter. He then asked if any minister or priest would
answer their question, and none was found who would do so. Thereafter no further messages were received from
within the cave, and it was assumed (erroneously, it later appeared) that the electric batteries of the explorers' wireless
machine had become exhausted. When the imprisoned men were finally released it was learned that on the twenty-third
day after their entrance into the cave Whetmore had been killed and eaten by his companions.
From the testimony of the defendants, which was accepted by the jury, it appears that it was Whetmore who first
proposed that they might find the nutriment without which survival was impossible in the flesh of one of their own
number. It was also Whetmore who first proposed the use of some method of casting lots, calling the attention of the
defendants to a pair of dice he happened to have with him. The defendants were at first reluctant to adopt so desperate a
procedure, but after the conversations by wireless related above, they finally agreed on the plan proposed by Whetmore.
After much discussion of the mathematical problems involved, agreement was finally reached on a method of
determining the issue by the use of the dice.
[original page number 1853] Before the dice were cast, however, Whetmore declared that he withdrew from the arrangement, as he had
decided on reflection to wait for another week before embracing an expedient so frightful and odious. The others
charged him with a breach of faith and proceeded to cast the dice. When it came Whetmore's turn, the dice were cast for
him by one of the defendants, and he was asked to declare any objections he might have to the fairness of the throw. He
stated that he had no such objections. The throw went against him, and he was then put to death and eaten by his
After the rescue of the defendants, and after they had completed a stay in a hospital where they underwent a course of
treatment for malnutrition and shock, they were indicted for the murder of Roger Whetmore. At the trial, after the
testimony had been concluded, the foreman of the jury (a lawyer by profession) inquired of the court whether the jury
might not find a special verdict, leaving it to the court to say whether on the facts as found the defendants were guilty.
After some discussion, both the Prosecutor and counsel for the defendants indicated their acceptance of this procedure,
and it was adopted by the court. In a lengthy special verdict the jury found the facts as I have related them above, and
found further that if on these facts the defendants were guilty of the crime charged against them, then they found the
defendants guilty. On the basis of this verdict, the trial judge ruled that the defendants were guilty of murdering Roger
Whetmore. The judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion
with respect to the penalty to be imposed. After the release of the jury, its members joined in a communication to the
Chief Executive asking that the sentence be commuted to an imprisonment of six months. The trial judge addressed a
similar communication to the Chief Executive. As yet no action with respect to these pleas has been taken, as the Chief
Executive is apparently awaiting our disposition of this petition of error.
It seems to me that in dealing with this extraordinary case the jury and the trial judge followed a course that was not only
fair and wise, but the only course that was open to them under the law. The language of our statute is well known:
"Whoever shall willfully take the life of another shall be punished by death." N. C. S. A. (n. s.) 12-A. This statute
permits of no exception applicable to this case, however our sympathies may incline us to make allowance for the tragic
situation in which these men found themselves.
In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I
propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications
they have addressed to the Chief Executive. There is every reason to believe that these requests for clemency will be
heeded, coming as they do from those who have studied the case and had an opportunity to become thoroughly
acquainted [original page number 1854] with all its circumstances. It is highly improbable that the Chief Executive would deny these
requests unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted
for three months. The holding of such hearings (which would virtually amount to a retrial of the case) would scarcely be
compatible with the function of the Executive as it is usually conceived. I think we may therefore assume that some form
of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing
either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.
Foster, J. I am shocked that the Chief Justice, in an effort to escape the embarrassments of this tragic case, should have
adopted, and should have proposed to his colleagues, an expedient at once so sordid and so obvious. I believe
something more is on trial in this case than the fate of these unfortunate explorers; that is the law of our Commonwealth.
If this Court declares that under our law these men have committed a crime, then our law is itself convicted in the
tribunal of common sense, no matter what happens to the individuals involved in this petition of error. For us to assert
that the law we uphold and expound compels us to a conclusion we are ashamed of, and from which we can only escape
by appealing to a dispensation resting within the personal whim of the Executive, seems to me to amount to an
admission that the law of this Commonwealth no longer pretends to incorporate justice.
For myself, I do not believe that our law compels the monstrous conclusion that these men are murderers. I believe, on
the contrary, that it declares them to be innocent of any crime. I rest this conclusion on two independent grounds, either
of which is of itself sufficient to justify the acquittal of these defendants.
The first of these grounds rests on a premise that may arouse opposition until it has been examined candidly. I take the
view that the enacted or positive law of this Commonwealth, including all of its statutes and precedents, is inapplicable
to this case, and that the case is governed instead by what ancient writers in Europe and America called "the law of
This conclusion rests on the proposition that our positive law is predicated on the possibility of men's coexistence in
society. When a situation arises in which the coexistence of men becomes impossible, then a condition that underlies all
of our precedents and statutes has ceased to exist. When that condition disappears, then it is my opinion that the force of
our positive law disappears with it. We are not accustomed to applying the maxim cessante ratione legis, cessat et ipsa
lex to the whole of our enacted law, but I believe that this is a case where the maxim should be so applied.
[original page number 1855] The proposition that all positive law is based on the possibility of men's coexistence has a strange sound, not
because the truth it contains is strange, but simply because it is a truth so obvious and pervasive that we seldom have
occasion to give words to it. Like the air we breathe, it so pervades our environment that we forget that it exists until we
are suddenly deprived of it. Whatever particular objects may be sought by the various branches of our law, it is apparent
on reflection that all of them are directed toward facilitating and improving men's coexistence and regulating with
fairness and equity the relations of their life in common. When the assumption that men may live together loses its truth,
as it obviously did in this extraordinary situation where life only became possible by the taking of life, then the basic
premises underlying our whole legal order have lost their meaning and force.
Had the tragic events of this case taken place a mile beyond the territorial limits of our Commonwealth, no one would
pretend that our law was applicable to them. We recognize that jurisdiction rests on a territorial basis. The grounds of
this principle are by no means obvious and are seldom examined. I take it that this principle is supported by an
assumption that it is feasible to impose a single legal order upon a group of men only if they live together within the
confines of a given area of the earth's surface. The premise that men shall coexist in a group underlies, then, the
territorial principle, as it does all of law. Now I contend that a case may be removed morally from the force of a legal
order, as well as geographically. If we look to the purposes of law and government, and to the premises underlying our
positive law, these men when they made their fateful decision were as remote from our legal order as if they had been a
thousand miles beyond our boundaries. Even in a physical sense, their underground prison was separated from our
courts and writ-servers by a solid curtain of rock that could be removed only after the most extraordinary expenditures
of time and effort.
I conclude, therefore, that at the time Roger Whetmore's life was ended by these defendants, they were, to use the
quaint language of nineteenth-century writers, not in a "state of civil society" but in a "state of nature." This has the
consequence that the law applicable to them is not the enacted and established law of this Commonwealth, but the law
derived from those principles that were appropriate to their condition. I have no hesitancy in saying that under those
principles they were guiltless of any crime.
What these men did was done in pursuance of an agreement accepted by all of them and first proposed by Whetmore
himself. Since it was apparent that their extraordinary predicament made inapplicable the usual principles that regulate
men's relations with one another, it was necessary for them to draw, as it were, a new charter of government
appropriate to the situation in which they found themselves.
[original page number 1856] It has from antiquity been recognized that the most basic principle of law or government is to be found in the
notion of contract or agreement. Ancient thinkers, especially during the period from 1600 to 1900, used to base
government itself on a supposed original social compact. Skeptics pointed out that this theory contradicted the known
facts of history, and that there was no scientific evidence to support the notion that any government was ever founded in
the manner supposed by the theory. Moralists replied that, if the compact was a fiction from a historical point of view,
the notion of compact or agreement furnished the only ethical justification on which the powers of government, which
include that of taking life, could be rested. The powers of government can only be justified morally on the ground that
these are powers that reasonable men would agree upon and accept if they were faced with the necessity of constructing
anew some order to make their life in common possible.
Fortunately, our Commonwealth is not bothered by the perplexities that beset the ancients. We know as a matter of
historical truth that our government was founded upon a contract or free accord of men. The archeological proof is
conclusive that in the first period following the Great Spiral the survivors of that holocaust voluntarily came together and
drew up a charter of government. Sophistical writers have raised questions as to the power of those remote contractors
to bind future generations, but the fact remains that our government traces itself back in an unbroken line to that original
If, therefore, our hangmen have the power to end men's lives, if our sheriffs have the power to put delinquent tenants in
the street, if our police have the power to incarcerate the inebriated reveler, these powers find their moral justification in
that original compact of our forefathers. If we can find no higher source for our legal order, what higher source should
we expect these starving unfortunates to find for the order they adopted for themselves?
I believe that the line of argument I have just expounded permits of no rational answer. I realize that it will probably be
received with a certain discomfort by many who read this opinion, who will be inclined to suspect that some hidden
sophistry must underlie a demonstration that leads to so many unfamiliar conclusions. The source of this discomfort is,
however, easy to identify. The usual conditions of human existence incline us to think of human life as an absolute
value, not to be sacrificed under any circumstances. There is much that is fictitious about this conception even when it is
applied to the ordinary relations of society. We have an illustration of this truth in the very case before us. Ten workmen
were killed in the process of removing the rocks from the opening to the cave. Did not the engineers and government
officials who directed the rescue effort know that the operations they were undertaking were dangerous and involved a
serious risk to the lives of the workmen executing them? If it was proper that [original page number 1857] these ten lives should be
sacrificed to save the lives of five imprisoned explorers, why then are we told it was wrong for these explorers to carry
out an arrangement which would save four lives at the cost of one?
Every highway, every tunnel, every building we project involves a risk to human life. Taking these projects in the
aggregate, we can calculate with some precision how many deaths the construction of them will require; statisticians can
tell you the average cost in human lives of a thousand miles of a four-lane concrete highway. Yet we deliberately and
knowingly incur and pay this cost on the assumption that the values obtained for those who survive outweigh the loss.
If these things can be said of a society functioning above ground in a normal and ordinary manner, what shall we say of
the supposed absolute value of a human life in the desperate situation in which these defendants and their companion
Whetmore found themselves?
This concludes the exposition of the first ground of my decision. My second ground proceeds by rejecting
hypothetically all the premises on which I have so far proceeded. I concede for purposes of argument that I am wrong in
saying that the situation of these men removed them from the effect of our positive law, and I assume that the
Consolidated Statutes have the power to penetrate five hundred feet of rock and to impose themselves upon these
starving men huddled in their underground prison.
Now it is, of course, perfectly clear that these men did an act that violates the literal wording of the statute which
declares that he who "shall willfully take the life of another" is a murderer. But one of the most ancient bits of legal
wisdom is the saying that a man may break the letter of the law without breaking the law itself. Every proposition of
positive law, whether contained in a statute or a judicial precedent, is to be interpreted reasonably, in the light of its
evident purpose. This is a truth so elementary that it is hardly necessary to expatiate on it. Illustrations of its application
are numberless and are to be found in every branch of the law. In Commonwealth v. Staymore the defendant was
convicted under a statute making it a crime to leave one's car parked in certain areas for a period longer than two hours.
The defendant had attempted to remove his car, but was prevented from doing so because the streets were obstructed by
a political demonstration in which he took no part and which he had no reason to anticipate. His conviction was set aside
by this Court, although his case fell squarely within the wording of the statute. Again, in Fehler v. Neegas there was
before this Court for construction a statute in which the word "not" had plainly been transposed from its intended
position in the final and most crucial section of the act. This transposition was contained in all the successive drafts of
the act, where it was apparently overlooked by the draftsmen and sponsors of the legislation. No one was able to prove
how the error came about, yet it was apparent [original page number 1858] that, taking account of the contents of the statute as a whole, an
error had been made, since a literal reading of the final clause rendered it inconsistent with everything that had gone
before and with the object of the enactment as stated in its preamble. This Court refused to accept a literal interpretation
of the statute, and in effect rectified its language by reading the word "not" into the place where it was evidently intended
The statute before us for interpretation has never been applied literally. Centuries ago it was established that a killing in
self-defense is excused. There is nothing in the wording of the statute that suggests this exception. Various attempts
have been made to reconcile the legal treatment of self-defense with the words of the statute, but in my opinion these are
all merely ingenious sophistries. The truth is that the exception in favor of self-defense cannot be reconciled with the
words of the statute, but only with its purpose.
The true reconciliation of the excuse of self-defense with the statute making it a crime to kill another is to be found in the
following line of reasoning. One of the principal objects underlying any criminal legislation is that of deterring men from
crime. Now it is apparent that if it were declared to be the law that a killing in self-defense is murder such a rule could
not operate in a deterrent manner. A man whose life is threatened will repel his aggressor, whatever the law may say.
Looking therefore to the broad purposes of criminal legislation, we may safely declare that this statute was not intended
to apply to cases of self-defense.
When the rationale of the excuse of self-defense is thus explained, it becomes apparent that precisely the same reasoning
is applicable to the case at bar. If in the future any group of men ever find themselves in the tragic predicament of these
defendants, we may be sure that their decision whether to live or die will not be controlled by the contents of our
criminal code. Accordingly, if we read this statute intelligently it is apparent that it does not apply to this case. The
withdrawal of this situation from the effect of the statute is justified by precisely the same considerations that were
applied by our predecessors in office centuries ago to the case of self-defense.
There are those who raise the cry of judicial usurpation whenever a court, after analyzing the purpose of a statute, gives
to its words a meaning that is not at once apparent to the casual reader who has not studied the statute closely or
examined the objectives it seeks to attain. Let me say emphatically that I accept without reservation the proposition that
this Court is bound by the statutes of our Commonwealth and that it exercises its powers in subservience to the duly
expressed will of the Chamber of Representatives. The line of reasoning I have applied above raises no question of
fidelity to enacted law, though it may possibly raise a question of the distinction between intelligent and unintelligent
fidelity. No superior wants a servant who lacks the ca [original page number 1859] pacity to read between the lines. The stupidest
housemaid knows that when she is told "to peel the soup and skim the potatoes" her mistress does not mean what she
says. She also knows that when her master tells her to "drop everything and come running" he has overlooked the
possibility that she is at the moment in the act of rescuing the baby from the rain barrel. Surely we have a right to expect
the same modicum of intelligence from the judiciary. The correction of obvious legislative errors or oversights is not to
supplant the legislative will, but to make that will effective.
I therefore conclude that on any aspect under which this case may be viewed these defendants are innocent of the crime
of murdering Roger Whetmore, and that the conviction should be set aside.
Tatting, J. In the discharge of my duties as a justice of this Court, I am usually able to dissociate the emotional and
intellectual sides of my reactions, and to decide the case before me entirely on the basis of the latter. In passing on this
tragic case I find that my usual resources fail me. On the emotional side I find myself torn between sympathy for these
men and a feeling of abhorrence and disgust at the monstrous act they committed. I had hoped that I would be able to put
these contradictory emotions to one side as irrelevant, and to decide the case on the basis of a convincing and logical
demonstration of the result demanded by our law. Unfortunately, this deliverance has not been vouchsafed me.
As I analyze the opinion just rendered by my brother Foster, I find that it is shot through with contradictions and
fallacies. Let us begin with his first proposition: these men were not subject to our law because they were not in a "state
of civil society" but in a "state of nature." I am not clear why this is so, whether it is because of the thickness of the rock
that imprisoned them, or because they were hungry, or because they had set up a "new charter of government" by which
the usual rules of law were to be supplanted by a throw of the dice. Other difficulties intrude themselves. If these men
passed from the jurisdiction of our law to that of "the law of nature," at what moment did this occur? Was it when the
entrance to the cave was blocked, or when the threat of starvation reached a certain undefined degree of intensity, or
when the agreement for the throwing of the dice was made? These uncertainties in the doctrine proposed by my brother
are capable of producing real difficulties. Suppose, for example, one of these men had had his twenty-first birthday
while he was imprisoned within the mountain. On what date would we have to consider that he had attained his majority
- when he reached the age of twenty-one, at which time he was, by hypothesis, removed from the effects of our law, or
only when he was released from the cave and became again subject to what my brother calls our "positive law"? These
difficulties may seem fanciful, yet they only serve to reveal the fanciful nature of the doctrine that is capable of giving
rise to them.
[original page number 1860] But it is not necessary to explore these niceties further to demonstrate the absurdity of my brother's position.
Mr. Justice Foster and I are the appointed judges of a court of the Commonwealth of Newgarth, sworn and empowered
to administer the laws of that Commonwealth. By what authority do we resolve ourselves into a Court of Nature? If
these men were indeed under the law of nature, whence comes our authority to expound and apply that law? Certainly
we are not in a state of nature.
Let us look at the contents of this code of nature that my brother proposes we adopt as our own and apply to this case.
What a topsy-turvy and odious code it is! It is a code in which the law of contracts is more fundamental than the law of
murder. It is a code under which a man may make a valid agreement empowering his fellows to eat his own body.
Under the provisions of this code, furthermore, such an agreement once made is irrevocable, and if one of the parties
attempts to withdraw, the others may take the law into their own hands and enforce the contract by violence - for though
my brother passes over in convenient silence the effect of Whetmore's withdrawal, this is the necessary implication of
The principles my brother expounds contain other implications that cannot be tolerated. He argues that when the
defendants set upon Whetmore and killed him (we know not how, perhaps by pounding him with stones) they were
only exercising the rights conferred upon them by their bargain. Suppose, however, that Whetmore had had concealed
upon his person a revolver, and that when he saw the defendants about to slaughter him he had shot them to death in
order to save his own life. My brother's reasoning applied to these facts would make Whetmore out to be a murderer,
since the excuse of self-defense would have to be denied to him. If his assailants were acting rightfully in seeking to
bring about his death, then of course he could no more plead the excuse that he was defending his own life than could a
condemned prisoner who struck down the executioner lawfully attempting to place the noose about his neck.
All of these considerations make it impossible for me to accept the first part of my brother's argument. I can neither
accept his notion that these men were under a code of nature which this Court was bound to apply to them, nor can I
accept the odious and perverted rules that he would read into that code. I come now to the second part of my brother's
opinion, in which he seeks to show that the defendants did not violate the provisions of N. C. S. A. (n. s.) 12-A. Here
the way, instead of being clear, becomes for me misty and ambiguous, though my brother seems unaware of the
difficulties that inhere in his demonstrations.
The gist of my brother's argument may be stated in the following terms: No statute, whatever its language, should be
applied in a way that contradicts its purpose. One of the purposes of any criminal stat [original page number 1861] ute is to deter. The
application of the statute making it a crime to kill another to the peculiar facts of this case would contradict this purpose,
for it is impossible to believe that the contents of the criminal code could operate in a deterrent manner on men faced with
the alternative of life or death. The reasoning by which this exception is read into the statute is, my brother observes, the
same as that which is applied in order to provide the excuse of self-defense.
On the face of things this demonstration seems very convincing indeed. My brother's interpretation of the rationale of
the excuse of self-defense is in fact supported by a decision of this court, Commonwealth v. Parry, a precedent I
happened to encounter in my research on this case. Though Commonwealth v. Parry seems generally to have been
overlooked in the texts and subsequent decisions, it supports unambiguously the interpretation my brother has put upon
the excuse of self-defense.
Now let me outline briefly, however, the perplexities that assail me when I examine my brother's demonstration more
closely. It is true that a statute should be applied in the light of its purpose, and that one of the purposes of criminal
legislation is recognized to be deterrence. The difficulty is that other purposes are also ascribed to the law of crimes. It
has been said that one of its objects is to provide an orderly outlet for the instinctive human demand for retribution.
Commonwealth v. Scape. It has also been said that its object is the rehabilitation of the wrongdoer. Commonwealth v.
Makeover. Other theories have been propounded. Assuming that we must interpret a statute in the light of its purpose,
what are we to do when it has many purposes or when its purposes are disputed?
A similar difficulty is presented by the fact that although there is authority for my brother's interpretation of the excuse
of self-defense, there is other authority which assigns to that excuse a different rationale. Indeed, until I happened on
Commonwealth v. Parry I had never heard of the explanation given by my brother. The taught doctrine of our law
schools, memorized by generations of law students, runs in the following terms: The statute concerning murder requires
a "willful" act. The man who acts to repel an aggressive threat to his own life does not act "willfully," but in response to
an impulse deeply ingrained in human nature. I suspect that there is hardly a lawyer in this Commonwealth who is not
familiar with this line of reasoning, especially since the point is a great favorite of the bar examiners.
Now the familiar explanation for the excuse of self-defense just expounded obviously cannot be applied by analogy to
the facts of this case. These men acted not only "willfully" but with great deliberation and after hours of discussing what
they should do. Again we encounter a forked path, with one line of reasoning leading us in one direction and another in
a direction that is exactly the opposite. This perplexity is in this case compounded, as it were, for we have to set off one
ex [original page number 1862] planation, incorporated in a virtually unknown precedent of this Court, against another explanation, which
forms a part of the taught legal tradition of our law schools, but which, so far as I know, has never been adopted in any
I recognize the relevance of the precedents cited by my brother concerning the displaced "not" and the defendant who
parked overtime. But what are we to do with one of the landmarks of our jurisprudence, which again my brother passes
over in silence? This is Commonwealth v. Valjean. Though the case is somewhat obscurely reported, it appears that the
defendant was indicted for the larceny of a loaf of bread, and offered as a defense that he was in a condition approaching
starvation. The court refused to accept this defense. If hunger cannot justify the theft of wholesome and natural food,
how can it justify the killing and eating of a man? Again, if we look at the thing in terms of deterrence, is it likely that a
man will starve to death to avoid a jail sentence for the theft of a loaf of bread? My brother's demonstrations would
compel us to overrule Commonwealth v. Valjean, and many other precedents that have been built on that case.
Again, I have difficulty in saying that no deterrent effect whatever could be attributed to a decision that these men were
guilty of murder. The stigma of the word "murderer" is such that it is quite likely, I believe, that if these men had known
that their act was deemed by the law to be murder they would have waited for a few days at least before carrying out
their plan. During that time some unexpected relief might have come. I realize that this observation only reduces the
distinction to a matter of degree, and does not destroy it altogether. It is certainly true that the element of deterrence
would be less in this case than is normally involved in the application of the criminal law.
There is still a further difficulty in my brother Foster's proposal to read an exception into the statute to favor this case,
though again a difficulty not even intimated in his opinion. What shall be the scope of this exception? Here the men cast
lots and the victim was himself originally a party to the agreement. What would we have to decide if Whetmore had
refused from the beginning to participate in the plan? Would a majority be permitted to overrule him? Or, suppose that
no plan were adopted at all and the others simply conspired to bring about Whetmore's death, justifying their act by
saying that he was in the weakest condition. Or again, that a plan of selection was followed but one based on a different
justification than the one adopted here, as if the others were atheists and insisted that Whetmore should die because he
was the only one who believed in an afterlife. These illustrations could be multiplied, but enough have been suggested to
reveal what a quagmire of hidden difficulties my brother's reasoning contains.
Of course I realize on reflection that I may be concerning myself with a problem that will never arise, since it is unlikely
that any group [original page number 1863] of men will ever again be brought to commit the dread act that was involved here. Yet, on still
further reflection, even if we are certain that no similar case will arise again, do not the illustrations I have given show
the lack of any coherent and rational principle in the rule my brother proposes? Should not the soundness of a principle
be tested by the conclusions it entails, without reference to the accidents of later litigational history? Still, if this is so,
why is it that we of this Court so often discuss the question whether we are likely to have later occasion to apply a
principle urged for the solution of the case before us? Is this a situation where a line of reasoning not originally proper
has become sanctioned by precedent, so that we are permitted to apply it and may even be under an obligation to do so?
The more I examine this case and think about it, the more deeply I become involved. My mind becomes entangled in the
meshes of the very nets I throw out for my own rescue. I find that almost every consideration that bears on the decision
of the case is counterbalanced by an opposing consideration leading in the opposite direction. My brother Foster has not
furnished to me, nor can I discover for myself, any formula capable of resolving the equivocations that beset me on all
I have given this case the best thought of which I am capable. I have scarcely slept since it was argued before us. When
I feel myself inclined to accept the view of my brother Foster, I am repelled by a feeling that his arguments are
intellectually unsound and approach mere rationalization. On the other hand, when I incline toward upholding the
conviction, I am struck by the absurdity of directing that these men be put to death when their lives have been saved at
the cost of the lives of ten heroic workmen. It is to me a matter of regret that the Prosecutor saw fit to ask for an
indictment for murder. If we had a provision in our statutes making it a crime to eat human flesh, that would have been a
more appropriate charge. If no other charge suited to the facts of this case could be brought against the defendants, it
would have been wiser, I think, not to have indicted them at all. Unfortunately, however, the men have been indicted
and tried, and we have therefore been drawn into this unfortunate affair.
Since I have been wholly unable to resolve the doubts that beset me about the law of this case, I am with regret
announcing a step that is, I believe, unprecedented in the history of this tribunal. I declare my withdrawal from the
decision of this case.
Keen, J. I should like to begin by setting to one side two questions which are not before this Court.
The first of these is whether executive clemency should be extended to these defendants if the conviction is affirmed.
Under our system of government, that is a question for the Chief Executive, not for us. I therefore disapprove of that
passage in the opinion of the Chief Justice in which he in effect gives instructions to the Chief Executive as to [original page number 1864]
what he should do in this case and suggests that some impropriety will attach if these instructions are not heeded. This is
a confusion of governmental functions - a confusion of which the judiciary should be the last to be guilty. I wish to state
that if I were the Chief Executive I would go farther in the direction of clemency than the pleas addressed to him
propose. I would pardon these men altogether, since I believe that they have already suffered enough to pay for any
offense they may have committed. I want it to be understood that this remark is made in my capacity as a private citizen
who by the accident of his office happens to have acquired an intimate acquaintance with the facts of this case. In the
discharge of my duties as judge, it is neither my function to address directions to the Chief Executive, nor to take into
account what he may or may not do, in reaching my own decision, which must be controlled entirely by the law of this
The second question that I wish to put to one side is that of deciding whether what these men did was "right" or
"wrong," "wicked" or "good." That is also a question that is irrelevant to the discharge of my office as a judge sworn to
apply, not my conceptions of morality, but the law of the land. In putting this question to one side I think I can also
safely dismiss without comment the first and more poetic portion of my brother Foster's opinion. The element of fantasy
contained in the arguments developed there has been sufficiently revealed in my brother Tatting's somewhat solemn
attempt to take those arguments seriously.
The sole question before us for decision is whether these defendants did, within the meaning of N. C. S. A. (n. s.)
12-A, willfully take the life of Roger Whetmore. The exact language of the statute is as follows: "Whoever shall
willfully take the life of another shall be punished by death." Now I should suppose that any candid observer, content to
extract from these words their natural meaning, would concede at once that these defendants did "willfully take the life"
of Roger Whetmore.
Whence arise all the difficulties of the case, then, and the necessity for so many pages of discussion about what ought to
be so obvious? The difficulties, in whatever tortured form they may present themselves, all trace back to a single source,
and that is a failure to distinguish the legal from the moral aspects of this case. To put it bluntly, my brothers do not like
the fact that the written law requires the conviction of these defendants. Neither do I, but unlike my brothers I respect the
obligations of an office that requires me to put my personal predilections out of my mind when I come to interpret and
apply the law of this Commonwealth.
Now, of course, my brother Foster does not admit that he is actuated by a personal dislike of the written law. Instead he
develops a familiar line of argument according to which the court may disregard the express language of a statute when
something not contained in the [original page number 1865] statute itself, called its "purpose," can be employed to justify the result the
court considers proper. Because this is an old issue between myself and my colleague, I should like, before discussing
his particular application of the argument to the facts of this case, to say something about the historical background of
this issue and its implications for law and government generally.
There was a time in this Commonwealth when judges did in fact legislate very freely, and all of us know that during that
period some of our statutes were rather thoroughly made over by the judiciary. That was a time when the accepted
principles of political science did not designate with any certainty the rank and function of the various arms of the state.
We all know the tragic issue of that uncertainty in the brief civil war that arose out of the conflict between the judiciary,
on the one hand, and the executive and the legislature, on the other. There is no need to recount here the factors that
contributed to that unseemly struggle for power, though they included the unrepresentative character of the Chamber,
resulting from a division of the country into election districts that no longer accorded with the actual distribution of the
population, and the forceful personality and wide popular following of the then Chief Justice. It is enough to observe
that those days are behind us, and that in place of the uncertainty that then reigned we now have a clear-cut principle,
which is the supremacy of the legislative branch of our government. From that principle flows the obligation of the
judiciary to enforce faithfully the written law, and to interpret that law in accordance with its plain meaning without
reference to our personal desires or our individual conceptions of justice. I am not concerned with the question whether
the principle that forbids the judicial revision of statutes is right or wrong, desirable or undesirable; I observe merely that
this principle has become a tacit premise underlying the whole of the legal and governmental order I am sworn to
Yet though the principle of the supremacy of the legislature has been accepted in theory for centuries, such is the tenacity
of professional tradition and the force of fixed habits of thought that many of the judiciary have still not accommodated
themselves to the restricted role which the new order imposes on them. My brother Foster is one of that group; his way
of dealing with statutes is exactly that of a judge living in the 3900's.
We are all familiar with the process by which the judicial reform of disfavored legislative enactments is accomplished.
Anyone who has followed the written opinions of Mr. Justice Foster will have had an opportunity to see it at work in
every branch of the law. I am personally so familiar with the process that in the event of my brother's incapacity I am
sure I could write a satisfactory opinion for him without any prompting whatever, beyond being informed whether he
liked the effect of the terms of the statute as applied to the case before him.
[original page number 1866] The process of judicial reform requires three steps. The first of these is to divine some single "purpose" which
the statute serves. This is done although not one statute in a hundred has any such single purpose, and although the
objectives of nearly every statute are differently interpreted by the different classes of its sponsors. The second step is to
discover that a mythical being called "the legislator," in the pursuit of this imagined "purpose," overlooked something or
left some gap or imperfection in his work. Then comes the final and most refreshing part of the task, which is, of
course, to fill in the blank thus created. Quod erat faciendum.
My brother Foster's penchant for finding holes in statutes reminds one of the story told by an ancient author about the
man who ate a pair of shoes. Asked how he liked them, he replied that the part he liked best was the holes. That is the
way my brother feels about statutes; the more holes they have in them the better he likes them. In short, he doesn't like
One could not wish for a better case to illustrate the specious nature of this gap-filling process than the one before us.
My brother thinks he knows exactly what was sought when men made murder a crime, and that was something he calls
"deterrence." My brother Tatting has already shown how much is passed over in that interpretation. But I think the
trouble goes deeper. I doubt very much whether our statute making murder a crime really has a "purpose" in any
ordinary sense of the term. Primarily, such a statute reflects a deeply-felt human conviction that murder is wrong and
that something should be done to the man who commits it. If we were forced to be more articulate about the matter, we
would probably take refuge in the more sophisticated theories of the criminologists, which, of course, were certainly not
in the minds of those who drafted our statute. We might also observe that men will do their own work more effectively
and live happier lives if they are protected against the threat of violent assault. Bearing in mind that the victims of
murders are often unpleasant people, we might add some suggestion that the matter of disposing of undesirables is not a
function suited to private enterprise, but should be a state monopoly. All of which reminds me of the attorney who once
argued before us that a statute licensing physicians was a good thing because it would lead to lower life insurance rates
by lifting the level of general health. There is such a thing as overexplaining the obvious.
If we do not know the purpose of 12-A, how can we possibly say there is a "gap" in it? How can we know what its
draftsmen thought about the question of killing men in order to eat them? My brother Tatting has revealed an
understandable, though perhaps slightly exaggerated revulsion to cannibalism. How do we know that his remote
ancestors did not feel the same revulsion to an even higher degree? Anthropologists say that the dread felt for a
forbidden act may be increased by the fact that the conditions of a tribe's life create special [original page number 1867] temptations toward
it, as incest is most severely condemned among those whose village relations make it most likely to occur. Certainly the
period following the Great Spiral was one that had implicit in it temptations to anthropophagy. Perhaps it was for that
very reason that our ancestors expressed their prohibition in so broad and unqualified a form. All of this is conjecture, of
course, but it remains abundantly clear that neither I nor my brother Foster knows what the "purpose" of 12-A is.
Considerations similar to those I have just outlined are also applicable to the exception in favor of self-defense, which
plays so large a role in the reasoning of my brothers Foster and Tatting. It is of course true that in Commonwealth v.
Parry an obiter dictum justified this exception on the assumption that the purpose of criminal legislation is to deter. It
may well also be true that generations of law students have been taught that the true explanation of the exception lies in
the fact that a man who acts in self-defense does not act "willfully," and that the same students have passed their bar
examinations by repeating what their professors told them. These last observations I could dismiss, of course, as
irrelevant for the simple reason that professors and bar examiners have not as yet any commission to make our laws for
us. But again the real trouble lies deeper. As in dealing with the statute, so in dealing with the exception, the question is
not the conjectural purpose of the rule, but its scope. Now the scope of the exception in favor of self-defense as it has
been applied by this Court is plain: it applies to cases of resisting an aggressive threat to the party's own life. It is
therefore too clear for argument that this case does not fall within the scope of the exception, since it is plain that
Whetmore made no threat against the lives of these defendants.
The essential shabbiness of my brother Foster's attempt to cloak his remaking of the written law with an air of
legitimacy comes tragically to the surface in my brother Tatting's opinion. In that opinion Justice Tatting struggles
manfully to combine his colleague's loose moralisms with his own sense of fidelity to the written law. The issue of this
struggle could only be that which occurred, a complete default in the discharge of the judicial function. You simply
cannot apply a statute as it is written and remake it to meet your own wishes at the same time.
Now I know that the line of reasoning I have developed in this opinion will not be acceptable to those who look only to
the immediate effects of a decision and ignore the long-run implications of an assumption by the judiciary of a power of
dispensation. A hard decision is never a popular decision. Judges have been celebrated in literature for their sly prowess
in devising some quibble by which a litigant could be deprived of his rights where the public thought it was wrong for
him to assert those rights. But I believe that judicial dispensation does more harm in the long run than hard decisions.
Hard cases may [original page number 1868] even have a certain moral value by bringing home to the people their own responsibilities
toward the law that is ultimately their creation, and by reminding them that there is no principle of personal grace that can
relieve the mistakes of their representatives.
Indeed, I will go farther and say that not only are the principles I have been expounding those which are soundest for
our present conditions, but that we would have inherited a better legal system from our forefathers if those principles
had been observed from the beginning. For example, with respect to the excuse of self-defense, if our courts had stood
steadfast on the language of the statute the result would undoubtedly have been a legislative revision of it. Such a
revision would have drawn on the assistance of natural philosophers and psychologists, and the resulting regulation of
the matter would have had an understandable and rational basis, instead of the hodgepodge of verbalisms and
metaphysical distinctions that have emerged from the judicial and professorial treatment.
These concluding remarks are, of course, beyond any duties that I have to discharge with relation to this case, but I
include them here because I feel deeply that my colleagues are insufficiently aware of the dangers implicit in the
conceptions of the judicial office advocated by my brother Foster.
I conclude that the conviction should be affirmed.
Handy, J. I have listened with amazement to the tortured ratiocinations to which this simple case has given rise. I never
cease to wonder at my colleagues' ability to throw an obscuring curtain of legalisms about every issue presented to them
for decision. We have heard this afternoon learned disquisitions on the distinction between positive law and the law of
nature, the language of the statute and the purpose of the statute, judicial functions and executive functions, judicial
legislation and legislative legislation. My only disappointment was that someone did not raise the question of the legal
nature of the bargain struck in the cave - whether it was unilateral or bilateral, and whether Whetmore could not be
considered as having revoked an offer prior to action taken thereunder.
What have all these things to do with the case? The problem before us is what we, as officers of the government, ought
to do with these defendants. That is a question of practical wisdom, to be exercised in a context, not of abstract theory,
but of human realities. When the case is approached in this light, it becomes, I think, one of the easiest to decide that has
ever been argued before this Court.
Before stating my own conclusions about the merits of the case, I should like to discuss briefly some of the more
fundamental issues involved - issues on which my colleagues and I have been divided ever since I have been on the
I have never been able to make my brothers see that government is a human affair, and that men are ruled, not by words
on paper or by [original page number 1869] abstract theories, but by other men. They are ruled well when their rulers understand the
feelings and conceptions of the masses. They are ruled badly when that understanding is lacking.
Of all branches of the government, the judiciary is the most likely to lose its contact with the common man. The reasons
for this are, of course, fairly obvious. Where the masses react to a situation in terms of a few salient features, we pick
into little pieces every situation presented to us. Lawyers are hired by both sides to analyze and dissect. Judges and
attorneys vie with one another to see who can discover the greatest number of difficulties and distinctions in a single set
of facts. Each side tries to find cases, real or imagined, that will embarrass the demonstrations of the other side. To
escape this embarrassment, still further distinctions are invented and imported into the situation. When a set of facts has
been subjected to this kind of treatment for a sufficient time, all the life and juice have gone out of it and we have left a
handful of dust.
Now I realize that wherever you have rules and abstract principles lawyers are going to be able to make distinctions. To
some extent the sort of thing I have been describing is a necessary evil attaching to any formal regulation of human
affairs. But I think that the area which really stands in need of such regulation is greatly overestimated. There are, of
course, a few fundamental rules of the game that must be accepted if the game is to go on at all. I would include among
these the rules relating to the conduct of elections, the appointment of public officials, and the term during which an
office is held. Here some restraint on discretion and dispensation, some adherence to form, some scruple for what does
and what does not fall within the rule, is, I concede, essential. Perhaps the area of basic principle should be expanded to
include certain other rules, such as those designed to preserve the free civilmoign system.
But outside of these fields I believe that all government officials, including judges, will do their jobs best if they treat
forms and abstract concepts as instruments. We should take as our model, I think, the good administrator, who
accommodates procedures and principles to the case at hand, selecting from among the available forms those most suited
to reach the proper result.
The most obvious advantage of this method of government is that it permits us to go about our daily tasks with
efficiency and common sense. My adherence to this philosophy has, however, deeper roots. I believe that it is only with
the insight this philosophy gives that we can preserve the flexibility essential if we are to keep our actions in reasonable
accord with the sentiments of those subject to our rule. More governments have been wrecked, and more human misery
caused, by the lack of this accord between ruler and ruled than by any other factor that can be discerned in history. Once
drive a sufficient wedge between the mass of people and those who direct their legal, [original page number 1870] political, and economic
life, and our society is ruined. Then neither Foster's law of nature nor Keen's fidelity to written law will avail us
Now when these conceptions are applied to the case before us, its decision becomes, as I have said, perfectly easy. In
order to demonstrate this I shall have to introduce certain realities that my brothers in their coy decorum have seen fit to
pass over in silence, although they are just as acutely aware of them as I am.
The first of these is that this case has aroused an enormous public interest, both here and abroad. Almost every
newspaper and magazine has carried articles about it; columnists have shared with their readers confidential information
as to the next governmental move; hundreds of letters-to-the-editor have been printed. One of the great newspaper chains
made a poll of public opinion on the question, "What do you think the Supreme Court should do with the Speluncean
explorers?" About ninety per cent expressed a belief that the defendants should be pardoned or let off with a kind of
token punishment. It is perfectly clear, then, how the public feels about the case. We could have known this without the
poll, of course, on the basis of common sense, or even by observing that on this Court there are apparently
four-and-a-half men, or ninety per cent, who share the common opinion.
This makes it obvious, not only what we should do, but what we must do if we are to preserve between ourselves and
public opinion a reasonable and decent accord. Declaring these men innocent need not involve us in any undignified
quibble or trick. No principle of statutory construction is required that is not consistent with the past practices of this
Court. Certainly no layman would think that in letting these men off we had stretched the statute any more than our
ancestors did when they created the excuse of self-defense. If a more detailed demonstration of the method of
reconciling our decision with the statute is required, I should be content to rest on the arguments developed in the second
and less visionary part of my brother Foster's opinion.
Now I know that my brothers will be horrified by my suggestion that this Court should take account of public opinion.
They will tell you that public opinion is emotional and capricious, that it is based on half-truths and listens to witnesses
who are not subject to cross-examination. They will tell you that the law surrounds the trial of a case like this with
elaborate safeguards, designed to insure that the truth will be known and that every rational consideration bearing on the
issues of the case has been taken into account. They will warn you that all of these safeguards go for naught if a mass
opinion formed outside this framework is allowed to have any influence on our decision.
But let us look candidly at some of the realities of the administration of our criminal law. When a man is accused of
crime, there are, [original page number 1871] speaking generally, four ways in which he may escape punishment. One of these is a
determination by a judge that under the applicable law he has committed no crime. This is, of course, a determination
that takes place in a rather formal and abstract atmosphere. But look at the other three ways in which he may escape
punishment. These are: (1) a decision by the Prosecutor not to ask for an indictment; (2) an acquittal by the jury; (3) a
pardon or commutation of sentence by the executive. Can anyone pretend that these decisions are held within a rigid and
formal framework of rules that prevents factual error, excludes emotional and personal factors, and guarantees that all
the forms of the law will be observed?
In the case of the jury we do, to be sure, attempt to cabin their deliberations within the area of the legally relevant, but
there is no need to deceive ourselves into believing that this attempt is really successful. In the normal course of events
the case now before us would have gone on all of its issues directly to the jury. Had this occurred we can be confident
that there would have been an acquittal or at least a division that would have prevented a conviction. If the jury had been
instructed that the men's hunger and their agreement were no defense to the charge of murder, their verdict would in all
likelihood have ignored this instruction and would have involved a good deal more twisting of the letter of the law than
any that is likely to tempt us. Of course the only reason that didn't occur in this case was the fortuitous circumstance that
the foreman of the jury happened to be a lawyer. His learning enabled him to devise a form of words that would allow
the jury to dodge its usual responsibilities.
My brother Tatting expresses annoyance that the Prosecutor did not, in effect, decide the case for him by not asking for
an indictment. Strict as he is himself in complying with the demands of legal theory, he is quite content to have the fate
of these men decided out of court by the Prosecutor on the basis of common sense. The Chief Justice, on the other
hand, wants the application of common sense postponed to the very end, though like Tatting, he wants no personal part
This brings me to the concluding portion of my remarks, which has to do with executive clemency. Before discussing
that topic directly, I want to make a related observation about the poll of public opinion. As I have said, ninety per cent
of the people wanted the Supreme Court to let the men off entirely or with a more or less nominal punishment. The ten
per cent constituted a very oddly assorted group, with the most curious and divergent opinions. One of our university
experts has made a study of this group and has found that its members fall into certain patterns. A substantial portion of
them are subscribers to "crank" newspapers of limited circulation that gave their readers a distorted version of the facts
of the case. Some thought that "Speluncean" means "cannibal" and that anthropophagy is a tenet of the Society. But the
point I want to make, however, is this: although al [original page number 1872] most every conceivable variety and shade of opinion was
represented in this group, there was, so far as I know, not one of them, nor a single member of the majority of ninety
per cent, who said, "I think it would be a fine thing to have the courts sentence these men to be hanged, and then to have
another branch of the government come along and pardon them." Yet this is a solution that has more or less dominated
our discussions and which our Chief Justice proposes as a way by which we can avoid doing an injustice and at the
same time preserve respect for law. He can be assured that if he is preserving anybody's morale, it is his own, and not
the public's, which knows nothing of his distinctions. I mention this matter because I wish to emphasize once more the
danger that we may get lost in the patterns of our own thought and forget that these patterns often cast not the slightest
shadow on the outside world.
I come now to the most crucial fact in this case, a fact known to all of us on this Court, though one that my brothers
have seen fit to keep under the cover of their judicial robes. This is the frightening likelihood that if the issue is left to
him, the Chief Executive will refuse to pardon these men or commute their sentence. As we all know, our Chief
Executive is a man now well advanced in years, of very stiff notions. Public clamor usually operates on him with the
reverse of the effect intended. As I have told my brothers, it happens that my wife's niece is an intimate friend of his
secretary. I have learned in this indirect, but, I think, wholly reliable way, that he is firmly determined not to commute
the sentence if these men are found to have violated the law.
No one regrets more than I the necessity for relying in so important a matter on information that could be characterized
as gossip. If I had my way this would not happen, for I would adopt the sensible course of sitting down with the
Executive, going over the case with him, finding out what his views are, and perhaps working out with him a common
program for handling the situation. But of course my brothers would never hear of such a thing.
Their scruple about acquiring accurate information directly does not prevent them from being very perturbed about what
they have learned indirectly. Their acquaintance with the facts I have just related explains why the Chief Justice,
ordinarily a model of decorum, saw fit in his opinion to flap his judicial robes in the face of the Executive and threaten
him with excommunication if he failed to commute the sentence. It explains, I suspect, my brother Foster's feat of
levitation by which a whole library of law books was lifted from the shoulders of these defendants. It explains also why
even my legalistic brother Keen emulated Pooh-Bah in the ancient comedy by stepping to the other side of the stage to
address a few remarks to the Executive "in my capacity as a private citizen." (I may remark, incidentally, that [original page number 1873]
the advice of Private Citizen Keen will appear in the reports of this court printed at taxpayers' expense.)
I must confess that as I grow older I become more and more perplexed at men's refusal to apply their common sense to
problems of law and government, and this truly tragic case has deepened my sense of discouragement and dismay. I
only wish that I could convince my brothers of the wisdom of the principles I have applied to the judicial office since I
first assumed it. As a matter of fact, by a kind of sad rounding of the circle, I encountered issues like those involved
here in the very first case I tried as Judge of the Court of General Instances in Fanleigh County.
A religious sect had unfrocked a minister who, they said, had gone over to the views and practices of a rival sect. The
minister circulated a handbill making charges against the authorities who had expelled him. Certain lay members of the
church announced a public meeting at which they proposed to explain the position of the church. The minister attended
this meeting. Some said he slipped in unobserved in a disguise; his own testimony was that he had walked in openly as
a member of the public. At any rate, when the speeches began he interrupted with certain questions about the affairs of
the church and made some statements in defense of his own views. He was set upon by members of the audience and
given a pretty thorough pommeling, receiving among other injuries a broken jaw. He brought a suit for damages against
the association that sponsored the meeting and against ten named individuals who he alleged were his assailants.
When we came to the trial, the case at first seemed very complicated to me. The attorneys raised a host of legal issues.
There were nice questions on the admissibility of evidence, and, in connection with the suit against the association,
some difficult problems turning on the question whether the minister was a trespasser or a licensee. As a novice on the
bench I was eager to apply my law school learning and I began studying these question closely, reading all the
authorities and preparing well-documented rulings. As I studied the case I became more and more involved in its legal
intricacies and I began to get into a state approaching that of my brother Tatting in this case. Suddenly, however, it
dawned on me that all these perplexing issues really had nothing to do with the case, and I began examining it in the
light of common sense. The case at once gained a new perspective, and I saw that the only thing for me to do was to
direct a verdict for the defendants for lack of evidence.
I was led to this conclusion by the following considerations. The melee in which the plaintiff was injured had been a
very confused affair, with some people trying to get to the center of the disturbance, while others were trying to get
away from it; some striking at the plaintiff, while others were apparently trying to protect him. It would have taken
weeks to find out the truth of the matter. I decided that [original page number 1874] nobody's broken jaw was worth that much to the
Commonwealth. (The minister's injuries, incidentally, had meanwhile healed without disfigurement and without any
impairment of normal faculties.) Furthermore, I felt very strongly that the plaintiff had to a large extent brought the thing
on himself. He knew how inflamed passions were about the affair, and could easily have found another forum for the
expression of his views. My decision was widely approved by the press and public opinion, neither of which could
tolerate the views and practices that the expelled minister was attempting to defend.
Now, thirty years later, thanks to an ambitious Prosecutor and a legalistic jury foreman, I am faced with a case that
raises issues which are at bottom much like those involved in that case. The world does not seem to change much,
except that this time it is not a question of a judgment for five or six hundred frelars, but of the life or death of four men
who have already suffered more torment and humiliation than most of us would endure in a thousand years. I conclude
that the defendants are innocent of the crime charged, and that the conviction and sentence should be set aside.
Tatting, J. I have been asked by the Chief Justice whether, after listening to the two opinions just rendered, I desire to
reexamine the position previously taken by me. I wish to state that after hearing these opinions I am greatly strengthened
in my conviction that I ought not to participate in the decision of this case.
The Supreme Court being evenly divided, the conviction and sentence of the Court of General Instances is affirmed. It is
ordered that the execution of the sentence shall occur at 6 a.m., Friday, April 2, 4300, at which time the Public
Executioner is directed to proceed with all convenient dispatch to hang each of the defendants by the neck until he is
Now that the court has spoken its judgment, the reader puzzled by the choice of date may wish to be reminded that the
centuries which separate us from the year 4300 are roughly equal to those that have passed since the Age of Pericles.
There is probably no need to observe that the Speluncean Case itself is intended neither as a work of satire nor as a
prediction in any ordinary sense of the term. As for the judges who make up Chief Justice Truepenny's court, they are,
of course, as mythical as the facts and precedents with which they deal. The reader who refuses to accept this view, and
who seeks to trace out contemporary resemblances where none is intended or contemplated, should be warned that he is
engaged in a frolic of his own, which may possibly lead him to miss whatever modest truths are contained in the
opinions delivered by the Supreme Court of Newgarth. The case was constructed for the sole purpose of bringing into a
common focus cer [original page number 1875] tain divergent philosophies of law and government. These philosophies presented men with
live questions of choice in the days of Plato and Aristotle. Perhaps they will continue to do so when our era has had its
say about them. If there is any element of prediction in the case, it does not go beyond a suggestion that the questions
involved are among the permanent problems of the human race.
Back to top
Imagine that you are a Judge sitting on the bench of the Supreme
Court of Newgarth. Never mind, for the moment, where Newgarth
is or how you became a Judge, sitting on the bench of this most
distinguished Court. But here you are in your black attire all
set to render a judgment in one of the most bizarre cases you
have ever heard. Consider, then, the following variation of Lon Fuller's adapted from Leo Katz' recounting of the tale in his BAD ACTS AND GUILTY MINDS:
The Case of the Speluncean Explorers
The murder case that has come before the Supreme Court of Newgarth
presents problems that have not arisen within anyone's memory
and for which the dustier volumes of the law reports offer few,
if any, precedents. The four defendants have already been tried
and convicted in the Court of General Instances of the County
of Stowfield for the murder of their travelling companion Roger
Whetmore. In accordance with Newgarth's very succinct murder statute
- "Whoever shall willfully take the life of another shall
be punished by death" - they had been sentenced to death
by hanging. They have appealed to the Supreme Court where you
now sit and it is up to you, indeed all of you as Judges of this
Court, to affirm or reverse the trial court.
The four defendants and Roger Whetmore were all members of the
Speluncean Society, a group of amateur cave explorers and archaeologists.
In May the five set out to explore the interior of a limestone
cavern located in the Central Plateau. While the five of them
(three men and two women) were probing the remote inner reaches
of the cave, a powerful landslide shook the area. A barrage of
massive boulders rained down in front of the cave and blocked
its only exit. Although physically unscathed, the five explorers
found themselves hopelessly immured in the rubble, with little
more than a meager supply of water, wine, and dates to last them
through the indefinite future.
The absence of the five explorers was soon noticed. Their families
grew alarmed and called on the secretary of the society to undertake
a search. It turned out that the explorers had left at the society's
headquarters fairly exact indications of their whereabouts, and
a rescue party was immediately sent out for them. But freeing
them proved far from easy. The society's rescue party was no match
for the primordial boulders. Heavy machinery had to be moved in
from far away. A whole army of workmen, engineers, geologists,
and other experts had to be assembled. Fresh landslides repeatedly
intervened to make working conditions hazardous and progress slow.
Ten workmen ultimately died in the rescue effort.
As the days wore on, the rescuers grew increasingly anxious that
starvation might kill the explorers long before a passageway could
be cut through the debris. Though considered hardy souls, the
explorers were known to have taken only scant provisions along,
and limestone caverns rarely, if ever, contain any nourishing
vegetation. On the twentieth day, however, the rescuers learned
by accident that the explorers had with them a portable wireless
machine capable of sending and receiving messages. A similar machine
was installed in the rescue camp and communication established
with the imprisoned members of the exploring party. The prisoners
turned out to be unexpectedly alert and remarkably rational and
detached about their predicament. Roger Whetmore, the most experienced
among them, did most of the talking. He asked how long it would
take to liberate them. The engineers estimated it would take at
least ten more days, provided no new landslides occurred. Whetmore
then asked whether any physicians were present and was immediately
put in touch with a committee of medical experts. He described
to them with precision what was left of the spare rations they
had taken with them into the cave. Taking turns, each of the prisoners
then described his or her physical condition. Finally, Whetmore
asked for a medical opinion whether they were likely to survive
the next ten days. Despite some initial reluctance to answer,
the committee chairman admitted that there was little likelihood
The wireless machine then remained silent for eight hours. Finally,
Whetmore's voice reappeared; he asked to speak once more to the
physicians. His voice unnaturally loud and quavering ever so slightly,
he inquired of the chairman whether they would be able to survive
if they ate the flesh of one of their number. The chairman refused
to answer. When Whetmore pressed him, he finally agreed that they
probably would. Whetmore then asked if it would be advisable for
them to cast lots to determine who among them should be sacrificed.
The chairman again refused to answer; this time he remained adamant.
None of the other physicians were willing to respond either. Whetmore
asked if there were among the party a judge or other governmental
official who could answer his question. No one responded, not
even the secretary of the society who was in fact a justice of
peace. Whetmore asked if there were a rabbi or priest who would
answer his question but no one stepped forward, although a priest
had only recently performed the last rites on a dying workman.
The wireless machine then went dead, and it was assumed - erroneously
as it turned out - that the batteries had been exhausted.
Conscious that time was running out, the rescuers speeded up their
efforts. They took risks they would ordinarily have avoided; as
a result six more workmen were killed by another unexpected landslide.
Eight days after the exchange with Whetmore, they finally laid
bare the cave's exit. Four of the exploring party (two men and
two women) were still alive, although close to expiration. The
fifth, Roger Whetmore, was dead. His skeletal remains told most
of the story, but the survivors made no secret of what had happened.
On the twenty-third day of their captivity the defendants had
killed and eaten their companion.
Ironically, Roger Whetmore had been the first to propose such
a sacrifice. Not only would this ensure that at least some of
them survived, he said, but even the victim had reason to be grateful
for being spared the agony of a slow death by starvation. He for
one, should the lot fall on him, would prefer it that way. Although
at first repelled by the idea, his colleagues acquiesced in Whetmore's
proposal when they heard the dire predictions of the medical experts.
Whetmore happened to have a pair of dice with him, hence that
was the method adopted for choosing the victim. The roll went
The defendants were treated at length for malnutrition and shock
and finally were put on trial. The trial was one of the least
contentious in Newgarth's history, since there was little disagreement
on the facts. Still, the jury deliberated for a long time. At
one point the foreman - as it happened, a lawyer - asked the court
whether the jury might be allowed simply to issue a special verdict
finding all the facts and leaving it to the trial judge whether
under those facts the defendants were guilty. Both sides agreed
to this proposal; and the court acquiesced. Then, having examined
the jury's rather unsurprising findings, he held the defendants
guilty of murder and, as required, sentenced them to death. This
done, the defendants' attorneys immediately filed an appeal and
the case has now come before the Supreme Court and before all
Are the defendants guilty of murder? What do you think? Write
your verdict, guilty or not guilty, on a piece of paper. Do not
show it to your fellow Justices. Fold it and keep it in a safe
place. Part of the point of jotting down your initial response
is to see if it remains the same after you have discussed the
case with your fellow Justices. Once everyone has jotted down
their verdict, it may make sense to take a quick poll to see where
everybody stands (or sits, as the case may be) and to take polls
at regular intervals throughout the discussion. Before a poll
is taken, it is still useful
to ask each member of the Court to jot down his or her verdict
before a poll is taken so that no one is influenced by one or
another Justice's change of mind.
At this point you may wish to discuss among yourselves whether
you believe the four defendants ought to be found guilty of murder
or whether you think their action was in some sense justified
or ought to be excused. What are the grounds for your thinking
the way you do?
The stricture "Thou shalt not kill" might lead a reader
of the Ten Cammandments to conclude that the prohibition against
killing was absolute and permitted no exceptions. "Thou
shalt not kill" is not accompanied by a list of exceptions
or a description of those circumstances under which killing might
be justified. There are, however, exceptions to the prohibition
of murder in the criminal law. The two most obvious exceptions
to killing in the criminal law are self-defense and the insanity
defense. Is there any reason to think that the defendants in
the Speluncean Case ought to be acquitted on either of these grounds?
Might some argument be made similar to the argument of self-defense
or on the basis of an analogy with the argument of self-defense
on behalf of the Spelunkers? Why won't an argument of self defense
or of temporary insanity work?
Back to top
III. THE UNITED STATES V. HOLMES
Now although the case of the speluncean explorers is a hypothetical case, there
have been cases like it, cases that are not in the least bit hypothetical,
but real as real can be. And in a case in 1842 involving the
charge of murder on the high seas, the attorney for the defense
argued that if and when citizens are isolated and/or cut off from
the rest of society, the normal, conventional rules cease to apply.
Citizens are then in, as it were, a "state of nature"
and their actions ought to be govened by "natural law,"
and the "law of self-preservation." David Brown, the
attorney for the defense in the following (very real) case, argued
that this "law of self-preservation" is just as compelling
as the "law of self-defense." Does this precedent in Leo Katz' retelling of the case
help you to determine the fate of the defendants in Newgarth?
United States v. Holmes, U. S.
Circuit Court, 1842
The William Brown left Liverpool on March 13, 1841 for
Philadelphia. She had 17 crew and 65 passengers, mostly Scotch
and Irish emigrants on board. At about 10:00 p.m. on the night
of the 19th of April, some 250 miles southeast of Cape Race, Newfoundland,
the ship struck an iceberg and began to fill so rapidly that it
was evident that she must go down soon. Both the long boat and
the jolly boat were swung clear and lowered into the water.
The captain, second-mate and seven other members of the crew plus
one passenger clambered into the jolly boat and 41 persons rushed
willy-nilly into the long boat (32 passengers and all 9 of the
remaining crew). Within an hour and half of being struck, the
ship went down. Thirty passengers in all, many of them children,
were on board when the ship sank.
On the following morning the captain ordered the mate to take
charge of the long boat before the two life boats parted company.
The long boat was in fairly good condition but she had not been
in the water since Liverpool and as soon as she was launched she
began to leak. And she continued to leak throughout that first
night and was now leaking still. The passengers, with the help
of various buckets and tins, were able - by bailing - to reduce
the water and keep the long boat afloat. The plug which was about
an inch and half in diameter came out more than once. Add to
this the fact that the long boat was very crowded and the weight
of passengers and crew brought the gunwale to 5 and 1/2 inches
of the water. Also to make matters worse it began to rain and
continued to rain throughout the day and night of that first full
day at sea. When the sun went down, the wind picked up and waves
splashed over the long boat's bow. Water was coming down from
above, from over the side and from below and at about ten o'clock
at night the situation became desperate. The boat was quite full
of water and the mate, who himself was bailing frantically, cried
out, "This . . . won't do. Help me, God. Men, go to work."
The crew, as if understanding what the mate was ordering them
to do, did not respond. Several passengers cried out, "The
boat is sinking. The plug's out. God have mercy on our souls."
And the mate exclaimed again: "Men, you must go to work,
or we shall all perish."
The crew then "went to work." The mate ordered the
crew "not to part man and wife, and not to throw any women
overboard." No lots were cast, nor had there been any discussion
among all of those on board about what to do in such an emergency.
There was no vote taken or consultation. The first to go was
Riley whom Holmes, a mere sailor, but a man well respected by
the passengers and crew, asked to "Stand up." He was
then thrown overboard. When they came to Charles Conlin, he cried
out, "Holmes, dear, sure you won't put me out?" "Yes,
Charley," said Holmes, "you must go, too." One
man asked for five minutes to say his prayers and was allowed,
at the interposition of the cook, to say them before he, too,
was thrown overboard. Frank Askin offered Holmes five sovereigns
to spare his life until the next morning, "when if God don't
send us some help, we'll draw lots, and if the lot falls on me,
I'll go over like a man." But Holmes only said, "I
don't want your money, Frank," and put him overboard. Askin
struggled violently while he was being "put out," but
the boat did not capsize. When the crew had done their "work,"
16 passengers (14 men and two women) were thrown out, although
the sacrifice of the two women may have been "an act of devotion
and affection for their brother," Frank Askin. When Holmes
seized Askin, the two sisters pleaded for his life and said if
he were thrown out, they wished to die, too and after he was gone,
one of the sisters said "and I care not now to live longer."
The boat had provisions for six or seven days for those remaining
on board: 75 pounds of bread, 6 gallons of water, 8 or 10 pounds
of meat, and a small bag of oatmeal. The mate had a chart, compass,
and quadrant. On Wednesday morning, the morning that followed
that fateful night, Holmes was the first to spot a vessel. He
told the passengers to "lie down and be very still. If they
make out so many of us on board, they will steer off another way
and pretend they have not seen us." He fastened a woman's
shawl to a boathook and began waving it wildly. They were spotted
and the Crescent picked up everyone in the long boat who
had survived the night.
The Crescent was bound for Le Havre and when the ship arrived,
public sentiment had already hardened against the crew and they
were arrested but almost immediately released when the British
and American consulates assured the authorities that the crew
had done nothing wrong. Eventually many of the surviving passengers
and crew made it back to Philadelphia, their home port (the William
Brown was "out of Philadelphia," its original destination,
remember, when it set sail from Liverpool).
News travels fast and the story of the crew's "exploits"
preceded them. The Public Ledger of Philadelphia demanded
that "the mate and sailors of the William Brown who
threw the passengers overboard to save themselves, should be put
upon trial for murder." And the editorials in other papers
were no less vehement. The New York Advertiser complained
that "we have emigrant ships sailing every week, and if it
is held as law that 'might is right' and that the crew are justified
under extremities in throwing overboard whom and as many as they
think right, without casting lots, or making other choice than
their will, it had better be declared so."
Several passengers who survived that fateful Tuesday night filed
a complaint against the crew with Philadephia's District Attorney.
Holmes, who was the only crew member then in the city, was arrested
and charged with the murder of Frank Askin, the man who had offered
Holmes five sovereigns to spare his life. Before trial the charge
was reduced to voluntary manslaughter, after the grand jury refused
to indict Holmes for murder. Holmes was indicted under the Act
of 1790 which ordained that "if any seaman, etc . . . shall
commit manslaughter upon the high seas, on conviction, shall be
imprisoned not exceeding three years and fined not exceeding one
thousand dollars." Holmes was taken under the wing of the
Female Seamen's Friend Society and the Society helped
him secure David Paul Brown, the best criminal lawyer in Philadelphia
at the time.
At trial the prosecution argued that "full and distinct notice
of the danger should have been given to all on board" and
that "lots should have been cast, before the sacrifice of
any for the safety of the rest would become justifiable."
Brown, in defense of Holmes, argued that in situations of necessity,
conventional law ceases to operate and gives way instead to "natural
law," i. e. "the law of self-preservation" and
Brown argued "the law of self-preservation" is no different
and is just as compelling as the "law of self-defense."
Brown appealed directly to the jury: "You sit here, the
sworn twelve, . . . reposing amidst the comfort and delights of
sacred homes . . . to decide upon the impulses and motives of
the prisoner at bar, launched upon the bosom of the perilous ocean-surrounded
by a thousand deaths in their most hideous forms, with but one
plank between him and destruction."
Holmes was convicted and sentenced to six months in jail and given
a $20 fine. A Presidential pardon relieved him of the fine but
he served his entire sentence. Upon his release, he returned
to the sea, as had the rest of the crew, none of whom were ever
tried for their part in the whole affair. Even the long boat
was repaired and sent out as a lifeboat on another voyage.
Does David Brown's appeal to the jury move you in any way? Is
there a "law of self-preservation" and is it (really)
just as compelling as the "law of self-defense?" Should
the defendanrs in the Speluncean Case be judged by the laws of
Newgarth or by so-called "laws of nature," which, on
David Brown's apparent understandig, seems to involve very little
"law" at all? Doesn't a "law of self-preservation"
prove, as it were, too much by suggesting, more or less, that
anything goes? But if "anything goes," why bother to
cast lots or follow any principles or procedures whatsoever?
^If "anything goes," wouldn't "anything"
be justified? In any event the Court in Holmes rejected
David Brown's "law of self-preservation" argument.
What do you think?
There is another critical difference between Holmes and
the Speluncean Case. In Holmes one man decided the fate
of the others; no die were cast or lots drawn. In fairness to
Holmes, it should be noted that his attorney, David Brown, did
offer a defense against the charge of failure to draw lots. "Lots,
in cases of famine, where means of subsistence are wanting for
all the crew, is what the history of maritime disaster records:
but who ever told of casting lots at midnight, in a sinking boat,
in the midst of darkness, of rain, of terror, and of confusion.
To cast lots when all are going down, when the question is, whether
any can be spared, is a plan easy to suggest, [but] rather difficult
to put into practice. . . . The sailors adopted the only principle
of selection which was possible in an emergency like theirs -
a principle more humane than lots. Man and wife were not torn
asunder, and the women were all preserved. Lots would have rendered
impossible this clear dictate of humanity." Brown's defense
of his client raises the question whether a lottery is indeed
a fair way to make a choice in situations such as these. There
was a time not so long ago when kidney dialysis was not available
to everyone who needed it; we did not decide by lot who should
be hooked to a machine. David Brown makes the point that one
problem with a lottery is that it does not discriminate. Should
have a more discriminating method have been used by the Spelunkers?
Is there some other, fairer, method than a roll of the dice that
the Spelunkers ought to have employed?
Back to top
IV. QUEEN V. DUDLEY
Putting Holmes aside for the moment, there was another
(very real) case in 1884 (Queen v. Dudley) which resembles
the Speluncean Case even more closely, insofar as it too involved
cannabalism, albeit cannabalism on the high seas. In this case, retold here in Leo Katz' words,
the defendants sought to justify their actions on grounds of "self-preservation,"
only to have the Court deny that such a justification existed,
stressing instead the duty of self-sacrifice. Indeed Dudley,
suggests that in such dire circumstances no fair method of selection
may exist and that unless one or another voluntarily sacrifices
himself or herself, all must perish together:
The Queen v. Dudley & Stephens, 14
Q.B.D. 273 (1884)
A wealthy Australian barrister purchased a yacht, the Mignonette,
in Essex. Although the ship was not the sturdiest, the owner decided
to have a crew sail it to Sydney for him rather than send it as
deck cargo. He hired Thomas Dudley as captain, and Dudley recruited
Edwin Stephens as mate, Edmund Brooks as able seaman, and a seventeen-year
old boy, Richard Parker, as ordinary seaman. They left in late
May and experienced several weeks of smooth sailing. Later the
weather turned foul, and Dudley decided to turn off the main trade
route. The winds, however, dogged them. Then suddenly, in the
late afternoon of the 5th of July, a heavy wave smashed against
the stern of the ship and sprang loose its timbers. The Mignonette
sank in less than five minutes. The four seaman just barely
managed to get into their lifeboat, a 13 foot open dinghy. Unfortunately,
the emergency supply of water that they had hastily thrown overboard
next to the dinghy was swept away by the waves. Only Dudley brought
anything with him into the dinghy, two tins of turnips and a sextant.
Sixteen hundred miles away from the closest shore their only hope
was to get on the main trade route and be picked up by another
ship. However parsimoniously rationed, the two tins of turnips
were quickly consumed. Occasional rainfall permitted the men to
collect some unsalted water in their oilskins. Parker, much sicker
than the others, quickly ate his rations; the rest were able to
hold out longer. On the fourth day they spotted a turtle asleep
on the water, hauled it on board, and fed on it for nearly a week,
even eating the bones and chewing on its leathery skin. They tried
to catch some fish, but with no success. Their lips and tongues
parched and blackened from thirst, they took to drinking their
urine. Eventually Parker and Stephens resorted to drinking seawater,
then thought to be certain poison.
On the nineteenth day, feeling more dead than alive, Dudley proposed
that one of them, to be chosen by lots, be killed for the rest
to feed on. Brooks would not hear of it; Stephens was hesitant,
and the idea was temporarily abandoned. Dudley next tried to persuade
Stephens. He no longer talked about drawing lots. Parker evidently
was the sickest, and he had no wife or children; it only seemed
fair, Dudley reasoned, that he be the one killed. Finally, Stephens
agreed. Dudley walked over to where Parker lay at the bottom of
the boat, his face buried in his arms. "Richard," he
said in a trembling voice, "your hour has come." "What?
Me, sir?" mumbled the only half-conscious boy, uncomprehendingly.
"Yes, my boy," Dudley repeated and then plunged his
penknife into Parker's neck.
For the next four days all three, including Brooks who had objected
to the killing, fed on the young boy's body, even drinking his
blood. On the twenty-fourth day of their odyssey they were sighted
by a German boat, the Montezuma, heading home from South
America. Of the three men, only Brooks was able to clamber aboard;
the rest had to be carried. Parker's remains, still in the dinghy,
left no doubt about what had happened and both Dudley and Stephens
completed the tale as soon as they had recovered sufficiently.
The German crew, however, continued to treat them with the utmost
In September the 6th, 1884, the Montezuma sailed into Falmouth.
The survivors were taken to the Customs House and closely questioned.
It did not occur to them that they had done anything criminal.
Dudley told of their adventure with something resembling gusto
and even insisted on keeping the penknife with which he had killed
Richard Parker as a memento. They were stunned when they were
put under arrest and charged with murder. The upright Dudley immediately
insisted that he was the ringleader and that Brooks was completely
innocent. Brooks was indeed discharged and became the prosecution's
Throughout the trial and the preparations preceding it, public
sympathy was almost entirely on the side of the "cannibals."
When Dudley traveled from Falmouth to London to meet his wife
at Paddington Station, people took their hats off as he passed.
The trial judge described Dudley as a man of "exemplary courage."
The mayor of Falmouth was threatened with murder for having arranged
the men's arrest. The prosecutor was similarly threatened, if
he obtained a conviction. And, most remarkably, Daniel Parker,
Richard Parker's eldest brother, forgave Dudley in open court,
and even shook hands with him. Parker's family planted a tombstone
on Richard's grave that read:
"Though he slay me, yet I will trust him." (Job,
Lord, lay not this sin to their charge.
The jury on the case was not permitted to render a verdict, for
fear it would simply acquit the defendants, but was merely allowed
to determine the facts. Nor did the trial judge render a verdict.
Instead by way of a highly unorthodox procedure, the case was
brought before a five judge tribunal, presided over by Lord Chief
Justice Lord Coleridge, who gave the opinion for the court: guilty
as charged. He prefaced his opinion by expressing doubt whether
a situation of necessity had truly existed. The defendants, he
noted, "might possibly have been picked up the next day by
a passing ship; they might possibly not have been picked up at
all. In either case it is obvious that the killing of Parker would
have been an unnecessary and profitless act. Even if necessity
existed, he went on, that could not justify the killing of another
human being. Coleridge refused to recognize self-preservation
as an all-justifying end. "To preserve one's life is generally
speaking a duty," he conceded, but added, "it may be
the plainest and the highest duty to sacrifice it. War is full
of instances in which it is a man's duty not to live, but to die.
The duty in case of shipwreck, of a captain to his crew, of the
crew to the passengers, of soldiers to women and children . .
. these duties impose on men the moral necessity, not of preservation,
but of their sacrifice of their lives for others . . . . It is
not correct, therefore, to say there is any absolute or unqualified
necessity to preserve one's life."
Finally he remarked that a rule permitting the killing of someone
in situations of necessity would be virtually unworkable. "Who
is to judge of this sort of necessity?" he asked. "By
what measure is the comparative value of lives to be measured?"
he continued. "Is it to be strength, or intellect, or what?"
The court then sentenced the defendants to death.
For all its rhetoric the court, however, did not want to be taken
too seriously. A pardon by the home secretary had been arranged
in advance, and when it came time to pronounce the death sentence,
the judges did not even wear their black hoods as is customary
on such occasions.
The defendants were released from prison six months later. Brooks
had already gone back to sea, but neither Dudley nor Stephens
were enamored of the idea. Stephens settled down near Southampton
and apparently supported himself through odd jobs. He continued
to be absorbed by the events on the dinghy and over time went
quietly mad. Thomas Dudley emigrated to Sydney, Australia, where
he became a small shopkeeper and managed to keep his past history
a secret. He too was haunted, however, by memories of the dinghy,
which according to one report, he tried to relieve by great quantities
of opium. He died as the first victim of the bubonic plague that
hit Australia in 1900.
Do either Holmes or Dudley give guidance? The Court
in Queen v. Dudley did not seem to think any method of
selection would be fair. As the judge in that case somehat rhetorically
asked: "By what measure is the comparative value of lives
to be measured?" But the Court in Holmes agreed that
if a lifeboat is overburdened with passengers and likely to sink
on the high seas, some passengers may be jettisoned on the condition
that they are selected fairly. Passengers, the Court believed,
took precedence over crew, if there were more crew than might
be necessary to operate the boat. But if more sacrifices were
called for, then, the Court believed, "lots must be cast."
Does Holmes suggest a verdict in the Case of our Spelunkers,
for in that case a roll of the dice determined Roger Whetmore's
fate, i.e. lots were cast?
Back to top
V. JUDGES CARDOZO AND CAHN ON THE RULE OF HUMAN JETTISON
Perhaps you are unhappy with this
opinion expressed in Holmes. If so, Benjamin Cardozo,
who later became a Supreme Court Justice, seems to be with you:
"Where two or more are overtaken by a common disaster, there
is no right on the part of one to save the lives of some by the
killing of another. There is no rule of human jettison. Men there
will often be who, when told that their going will be the salvation
of the remnant, will choose the nobler part and will make the
plunge into the waters. In that supreme moment the darkness for
them will be illumined by the thought that those behind will ride
to safety. If none of such mold are found aboard the boat, or
too few to save the others, the human freight must be left to
meet the chances of the waters. Who shall choose in such an hour
between the victims and saved? Who shall know when the masts and
sails of rescue may emerge out of the fog?"
Judge Edmund Cahn seems to be of a similar opinion:
"I am driven to conclude that otherwise - that is, if none
sacrifice themselves of free will to spare the others - they must
all wait and die together. For where all have become congeners,
pure and simple, no one can save himself by killing another. In
such a setting and at such a price, he has no moral individuality
left to save. Under the terms of the moral constitution it will
be wholly himself that he kills in his vain effort to preserve
himself. The "morals of the last days" leave him a generic
creature, only; in such a setting, so remote from the differentiations
of mortal existence, every person in the boat embodies the entire
genus. Whoever saves one, saves the whole human race; whoever
kills one, kills mankind."
Neither Cardozo or Cahn, however, make mention of a lottery or
a collective decision such as the one that was made by the Spelunkers
to determine who would killed by a throw of the dice. Does what
Cardozo or Cahn say help?
There is another exception to killing in the criminal law, less
well-known and less obvious than a plea of self-defense. Reference
is made to it, however obliquely, in Queen v. Dudley.
Did you catch it? It is the necessity defense, and it would
justify the defendants' killing of Roger Whetmore if they could
successfully defend their actions on such grounds.
Back to top
VI. THE NECESSITY DEFENSE
What is the necessity defense exactly and how and under what circumstances
might it work? Say there is a fire in a maximum security prison,
and the prisoners, threatened by death, break out of their cells.
Surely they are not guilty of the crime of escape? Here's a
situation where most of us would agree that necessity could be
a defense and that the prisoners who broke out of their cells
"out of necessity" ought not to be convicted for escape.
And what do you make of the following cases:
1. CVS To the Rescue
John goes into his local CVS to buy some Dorito chips for Alice.
While he is standing at the counter, he suffers a heart-attack.
Unless he receives an immediate dose of nitroglycerine, he will
die. John staggers back to the pharmacy, plunks a ten dollar
bill down on the counter, and asks for the drug. Henry, the pharmacist
on duty, sells the drug to John without a prescription because
there is no time to find a doctor. Is Henry guilty of selling
a drug without a prescription? What if the FDA had not yet approved
the drug, if in fact there are significant risks associated with
administering it which only a doctor can fully appreciate? What
if John simply says, "Give me something quick, I'm having
a heart attack," and Henry sells him the drug, but there
is another drug that Henry could have sold to John for the same
price but one with far fewer risks, but Henry did not know the
difference because he does not have a medical degree?
2. Woods v. State, Texas, 1938
Texas, like many other states, has a statute that requires anyone
in a car accident stop and wait for the police to arrive at the
scene. Elmer Woods and Alice are off to the movies. Two blocks
from the cinema Elmer collides with another car. Alice suffers
several cuts and bruises which, in Elmer's opinion, require immediate
attention. He drives away from the accident to the emergency
room of the local hospital. Later Elmer is charged with violating
the hit-and-run statute since he did not wait, as the statute
requires, for the police to arrive. He left the scene of the
accident. Should Elmer be found guilty, if, in his opinion, Alice
was injured to such an extent that it was necessary that she receive
3. State v. Jackson, New Hampshire, 1902
New Hampshire has a statute making school attendance compulsory.
Parents who keep their children out of school commit a criminal
offense. Samuel Jackson's daughter was in very poor health: he
feared for her life since she needed medical attention throughout
the day and night and, as a result, he did not dare send her to
school. In fact, he never applied to the school board for a special
exemption for his child or a dispensation. Did Samuel Jackson
act criminally? The court appealed to the necessity defense:
"A parent cannot be required to imperil the life of his
child by delays incident to an application to the school board,
before he can lawfully do what is apparently reasonably necessary
for [his child's] protection."
4. The William Gray, 1810
In 1810 the United States Congress imposed an embargo on the West
Indies. While sailing from Alexandria to Boston, a heavy storm
forced the William Gray to put in at the harbor of Antigua
in the West Indies. The West Indian Governor ordered the captain
to sell his cargo and only then allowed him to leave. Was the
ship guilty of a criminal violation of the embargo statute? The
court noted that the embargo statute did not contain an explicit
exception for ships caught in stormy weather. Nonetheless the
ship's action was subject to "the principle of necessity"
as recognized "from time immemorial," and the captain,
whose decision it was to put in to Antigua to ride out the storm,
was acquittted. What if the captain of the William Gray knew
before he left Alexandria that the weather would be foul and that
if caught in a storm, his ship would likely have to put in at
the West Indies?
5. United States v. Aston, Massachusetts Circuit Court
The Merrimack, a sailing ship, set out in 1834 from Boston
to Rio de Janeiro. She was leaky to begin with. Several days
out of the harbor she met with a ferocious gale that further worsened
her condition. The crew insisted on taking her back, but the
captain turned a deaf ear. The crew eventually refused to go
farther and the captain had no choice but to go back. In Boston
the crew members were charged with mutiny. Invoking the idea
of necessity, the court held that they should be acquitted if
they reasonably thought the ship unseaworthy and a serious hazard
to life. What if the Merrimack had been a naval vessel
steaming toward some distant battleground? Ought a court still
be willing to put the decision in the hands of the crew to turn
the ship back because it seems unlikely to survive the next severe
The Model Penal Code, from which many states draw the language
they use in wording their statutes, defines the necessity defense
"Conduct that the actor believes to be necessary to avoid
harm or evil to himself or to another is justifiable, provided
that: . . . the harm or evil sought to be avoided by such conduct
is greater than that sought to be prevented by the law defining
the offense charged."
The Code appears to give defendants a fairly wide latitude. Which
of the five cases above would you defend on grounds of necessity?
Then consider the following:
John is the driver of a trolley, whose brakes have failed. On
the track ahead of him are five people; the banks are so steep
that they will not be able to get off the track in time. The track
has a spur leading off to the right, and John can turn the trolley
onto it. Unfortunately, there is one person on the right hand
track. John can turn the trolley, killing the one; or he can refrain
from turning the trolley. John elects to turn the trolley onto
the right hand track, killing the one person.
Would you defend John on grounds of necessity? Why? If not,
why not? In its general form, as stated in the Model Penal Code,
the principle appears to involve the making of some sort of a
calculation. "Harm to be avoided" has to be calculated
and added up and then set against the "[harm] sought to be
prevented by the law defining the offense charged." The
principle itself, however, gives little guidance as to how the
balance is to be struck or for that matter much guidance as to
what weights to assign in the first place. John's trolley dilemma
would appear to be fairly uncomplicated in this regard. It would
appear to involve the weighing of the loss of five lives against
the loss of just one. Is this the choice, are these the alternatives?
It would appear that the loss of five lives is worse (would be
worse) than the loss of only one life.
But is this the best way to couch the choice? Isn't there another
difference between the two alternatives, a difference that might
make a difference, that is not captured by describing the alternatives
as a chocie between the number of lives lost? If John chooses,
for instance, the latter alternative over the former, he actually
kills another human being, whereas if he does not turn the trolley
he is letting five die. There may be only a small difference
in this situation between killing and letting die, but generally
we take it to be a difference that makes some moral difference.
Does the moral difference between killing and letting die prompt
you to give different weights to the alternatives John faces,
to assign, for instance, a greater weight to the harm John would
cause by turning the trolley onto the right hand track? Does
the moral difference in this case between killing and letting
die make enough of a difference to effect how, in applying the
necessity principle, the balance of relative harms would be (ought
to be) struck? The moral difference between killing and letting
die would appear to make just this sort of a difference in the
following (hypothetical) case:
John, on a botany expedition in the most remote regions of the
Brazilian jungle, stumbles into a clearing where he finds two
men with their guns trained on a group of ten South American villagers.
The Captain, or the man who appears to be in charge, turns to
John and announces that "Pedro here" is about to shoot
"all the villagers," but as the result of John's unexpected
arrival on the "scene," he, the Captain, has had a sudden
bout of compassion and if John would be willing to take Pedro's
gun and kill one of the villagers, he, the Captain, would allow
the other nine villagers to go free. If, however, John refuses
to accept the Captain's offer, "Pedro here will shoot them
all." John, his mind racing, entertains several "Indiana
Jones" fantasies (with himself as Indiana Jones), among them,
the idea that he might appear to agree to the Captain's offer,
take the gun from Pedro, and then turn it on Pedro and the Captain,
back away into the jungle with all ten villagers at his side,
and escape to a clearing down river where a small twin-engine
Cesna is waiting and fly all the villagers and himself to Rio
de Janeiro and freedom. But it is quite evident from the situation
that if John were to try anything of the sort, his "heroics"
will result not only in the deaths of all ten villagers but his
own as well. What should John do? With great reluctance and
a heavy heart, John elects to accept the Captain's offer. John
shoots one of the villagers and the Captain releases all the others
who promptly disappear into the jungle. With a somewhat inappropriate,
i. e., all too cheery, farewell, the Captain and Pedro head off
in the opposite direction. John slumps down. The body of the
villager lies a few yards away. John wonders what he has done.
Just then a helicopter swoops into view and lands in the middle
of the clearing. Several Brazilian police emerge, their weapons
drawn, and surround John. John is now in a small holding cell
somewhere along the upper Amazon. He has made a phone call to
Alice, letting her know that he has been charged with murder.
If you were John's attorney, would you argue his case on grounds
of necessity? Why not? Wouldn't Cardozo's "No Rule of
Human Jettison" apply equally well here? And if John had
refused the Captain's offer, would he have been subsequently accused
of any crime? What crime would that have been? What do our laws
presently encourage someone in John's position to do? If John
refused the Captain's offer, would you find him guilty of causing
the deaths of all ten villagers? Why not?
Perhaps John should not have gone on this botanical expedition
after all; perhaps he should have stayed home with Alice or gone
on that cruise with her to the Bahamas. Then, at least, he would
not be in such a pickle. Some other pickle perhaps, but, at least,
not this pickle. What's the difference between the two situations
in which John finds himself as a trolley driver and now as a botanist?
Why is necessity more likely to succeed as a defense in the former
case than in the latter? Or perhaps it ain't so. What do you
think? Before making up your mind, you may wish to discuss this
case with your fellow Justices and to see if you can reach any
kind of a consensus.
The necessity defense clearly involves more than just "doing
the numbers," that is, involves more than just adding up
good and bad consequences and calculating whether the result comes
out on the plus or minus side. This can be neatly demonstrated
by the following hypothetical case:
John has five patients who need organ transplants. Two of them
need a lung; two need a kidney; the fifth needs a heart. Alice
walks into John's office for her annual check-up. John kills Alice,
gives her lungs to the first two patients, her kidneys to the
other two, and her heart to the fifth, thus saving five lives
for the price of one.
Would you defend John on grounds of necessity? Why not? Why
does this case fail to meet the test of the Model Penal Code?
In any event, armed with this information about the necessity
defense, how might an argument be made for acquitting the defendants
in the Speluncean Case on grounds of necessity? One question
to ask, right off the bat, is (surely) was what the defendants
did really necessary. Remember the workers re-doubled their
efforts and reached the spelunkers two days earlier than they
had anticipated. Most states (in our country), however, merely
require of a defendant who pleads necessity that he have a reasonable
belief that he is in a situation of necessity. Take the following
case, for an instance:
When John and Alice were students in college, they participated
in an anti-war demonstration in May, 1968. There was a lot of
pushing and shoving. Alice falls down and appears to suffer a
severe spinal injury. Police officers try to arrest her but John
implores them not to move her without a stretcher since he believes
any movement will greatly aggravate her injury. The officers ignore
John; he tries to stop them. They arrest him and charge him with
disorderly conduct and interfering with police officers in the
performance of their duty. It turns out that Alice has not suffered
a spinal cord injury. John, however, reasonably believed that
she was hurt and that moving her without a stretcher would only
injure her further. Should John be found guilty of interfering
with the police officers?
Most states would acquit John on the grounds that he reasonably
believed that Alice was injured. How might this apply to our
Then there is the question of whether it might be argued that
the Spelunkers brought their situation on themselves and if they
brought their predicament on themselves, should they (even) be
permitted to defend themselves on grounds of necessity? If it
could be shown that they (perhaps) should have been a little more
alert to the dangers of exploring the caves they chose to enter,
or to the rain of pebbles and rocks as a sign of an impending
landslide, they might not have had to resort cannibalism. Did
the Spelunkers behave recklessly by entering the cave in the first
place? What if there were signs saying in clear, no uncertain
terms: "Do Not Enter. Landslide Danger. Proceed at Your
Own Risk." Did the spelunkers bring their predicament on
themselves? If the answer is "yes," should they be
allowed to plead necessity? What about the following cases, for
John and Alice go backpacking in the White Mountains. They have
planned a day trip near Mt. Washington, but they lose their way.
Night falls; a blizzard traps them. They stumble upon a cabin
in the woods. It belongs to Henry. The door is unlocked. They
enter and are saved from the cold. They help themselves to baked
beans and coffee. They build a fire to stay warm. After ten days
they are found by a search party. Should Alice and John be found
guilty of mis-appropriating Henry's goods, his beans, his coffee,
and his firewood?
John, who always fancied himself as a bit of a playboy, borrows
Alice's Jaguar for a joy-ride around town. While speeding down
Main street, tape deck blaring, the brakes fail and he loses control
of the car. The car is heading straight for an intersection where
a group of 20 nursery school children are crossing with their
teachers. He could let the car continue on its path or swerve
into the bookshop on the corner where there is a salesperson in
the window changing the window display. If he smashes into the
group, he may only be charged with involuntary manslaughter. If
he plows into the bookshop, he could be charged with voluntary
manslaughter, perhaps even murder. John decides to run the Jaguar
into the bookshop. He turns the wheel and crashes into the window
display, killing the salesperson instantly. He is arrested and
charged with voluntary manslaughter. He pleads necessity. If he
had not crashed into the bookshop, he argues, many more people
would have died. If you were the judge, would you find John guilty
It is tempting to think that John and Alice in the first case
and John in the second case have courted their own disaster and
so should not be allowed to invoke necxessity as a defense. Shouldn't
a defendant be completely blameless in order to be able to defend
himself on grounds of necessity? What would happen in the above
cases? Despite our feelings about the blameworthiness of the
defendants, John and Alice are not likely to be convicted of
misappropriating Henry's goods since reckless acts of misappropriation
are not crimes, only intentional acts are. They are likely to
be acquitted. In the other case, John is ikely to be acquitted
of murder or manslaughter for driving into the storefront window
on grounds of necessity, but he would in all liklihood be convicted
of manslaughter for driving recklessly in the first place, since
his recklessness eventually resulted in someone's death. Following
these precedents, if the Spelunkers acted recklessly, they might
be acquitted of the charge of Whetmore's murder on grounds of
necessity, but might then be convicted of mansluaghter for recklessly
entering the cave which recklessness eventually resulted in someone's
death, i.e., Roger Whetmore's. Of course, you have to be convinced
that the Spelunkers were indeed reckless in the first place.
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VII. HANS TIEDE'S NECESSITY DEFENSE
How might the necessity defense be made in practice? Is it really
workable? As an aid to answering this question, consider the
following (actual), very real, case, as retold (again) by Leo Katz:
Hans Tiede was a waiter in East Berlin, with a Polish wife and
two children (one of them was named John, after John F. Kennedy).
He wanted to go to "the West," but not surprisingly
was denied permission the twelve times he applied. His wife, being
Polish, was able to move to West Berlin, took the children with
her, and left it to Tiede to find his way there.
Ingrid Ruske was a waitress in East Berlin, divorced with a small
daughter, and in love with a West German engineer. They had planned
to escape to West Berlin by boarding a Polish cruise ship in Gdansk
with fake Western ID's. Ingrid, somewhat fearful, wanted someone
else to try the strategy first. She remembered her former boyfriend,
Hans Tiede, who was agreed to play guinea pig.
Hans and Ingrid flew to Gdansk to wait for the engineer to bring
them their ID's. He never came. East German agents had gotten
wind of his efforts through their underground network in West
Berlin and arrested him when he reentered East Berlin. The would-be
fugitives guessed what had happened. What to do now? Their own
arrests could not be too far off, since the photographs on the
engineer's fake ID's would clearly give them away. They couldn't
stay in Poland much longer, since they had no money left. In fact,
their only assets were the return tickets to East Berlin, which
they had bought merely to avoid arousing suspicion. Hans suggested
hijacking the plane to West Berlin. Unfortunately, he had no weapon.
As they aimlessly wandered through the streets of Gdansk. Ingrid's
daughter drew their attention to a toy gun in a shop window. It
looked real enough, Hans thought. He sold some of his clothing
and bought the gun.
They got on the plane, LOT flight 65, quite easily, by putting
the gun into the child's luggage. Airport security in fact searched
their bags and found it, but thought nothing of it when they saw
it was a toy. The moment of truth came when the pilot announced
the plane's imminent landing at East Berlin's Schoenfeld Airport.
Ingrid began to have second thoughts. Wouldn't the Gdansk control
tower have told the pilot the gun was a toy? Hans brushed aside
her reservations, ordered a stewardess at "gunpoint"
to take him into the cockpit, stormed into the cockpit, keeping
the stewardess with him as a "hostage," and ordered
the crew to take the plane to West Berlin. There were 68 passengers
on board the airplane. Everyone reacted calmly. The pilot checked
with the East Berlin airport, then with the West Berlin airport
and within a few minutes the plane had landed in West Berlin.
By this time, Hans' relationship with the crew was almost cordial.
He had told them why he did what he did, had passed around pictures
of his wife and children, and by the time the police led him away
the captain even flashed a thumbs-up sign. Before the plane took
off again, eight other East Germans had decided to stay in West
Berlin as well.
West Germany, East Germany, Poland, and the United States were
all parties to an international agreement to prosecute hijackers.
But West German authorities did not welcome the idea of prosecuting
the case. The West German Constitution at the time made all Germans,
including East Germans, West German citizens and gave them a "protected
right" to enter West Germany. West Germany did not at the
time recognize the validity of East German travel restrictions
either. In fact, an East German body guard who shot and killed
a fleeing East German was regarded under West German law at the
time as having committed murder. Since the Americans continued
to exercise the power of an occupying force in West Berlin, the
West German authorities asked them to convene an American court
to try the hijackers. The Americans obliged, setting up a special
United States District Court of Berlin, Judge Herbert Stein of
the United States District Court of New Jersey presiding.
Ingrid Ruske was never brought to trial. Her part in the hijacking
was evidently minor. The only proof of her involvement was a statement
she made to an interrogator. The judge ruled that the statement
had been improperly obtained and ordered it suppressed. Stripped
of its evidence, the prosecution withdrew the charges against
The case against Hans Tiede, however, went forward. He was charged
with hijacking, taking a hostage, depriving other persons of their
liberty, and doing bodily injury to a stewardess.
Hans Tiede pleaded not guilty on grounds of necessity. What do
you think? Does he have a case?
Tiede's Necessity Defense
Tiede claimed that he was simply asserting his rights under the
West German Constitution. Remember: at this time, prior to the
collapse of the Berlin Wall and the merger of East and West Germany
into a single nation, the West German Constitution did not recognize
the border between the two countries nor did it recognize the
distinction between "East" and "West" Germans.
An East German who successfully escaped from East to West was
simply regarded by the West German constitution as a German citizen
travelling within his or her own country. Tiede pointed out at
his trial that he and Ingrid Ruske were threatened with imminent
arrest by East German agents and that the only way for them to
avoid arrest was to hijack the plane. Tiede also argued that he
had secured not only his own and Ingrid Ruske's freedom but the
freedom of eight other East Germans who seized the opportunity
to defect. Remember, the Model Penal Code's understanding of the
necessity defense: "The harm or evil sought to be avoided
by [one's] conduct [must be] greater than that sought to be prevented
by the law defining the offense charged."
Does the Harm Avoided Outweigh the Harm that Tiede
The prosecution argued that Tiede's conduct had indeed caused
harm. By hijacking the plane he had "endangered the lives
and safety of 68 innocent people" aboard Lot flight 165.
The pilot had to land on an unfamiliar airport that was not designed
for planes of the size of flight 165. He had also caused mortal
anguish to the stewardess. And, the prosecution might have argued,
had the judge allowed the argument, that if Tiede was not convicted
in this case, this might lead countries like East Germany, along
with other countries in the Eastern block, to stop adhering to
international anti-hijacking agreements. In any event, the prosecution
argued that "the harm sought to be prevented by the offense"
far outweighed the harm that Tiede had "avoided" by
hijacking the plane. What do you think? Would you free Tiede
on grounds of necessity? If not, why not?
Voluntarily Assumed Risk?
What about the argument that Tiede had somehow got himself into
the predicament of having to flee or be arrested and so was not
entirely blameless in bringing about the offense, i.e., the hijacking
of the airplane, with which he was charged? If so, he should (perhaps)
not be allowed to plead necessity. But is the situation really
a situation of Tiede's own making?
A Reasonable Belief?
What about the argument that Tiede's conduct was not really necessary
after all because he could have applied one more time for a visa
or permission to travel to West Berlin, i.e., he should have exhausted
all legal means to get from the one place (the East) to the other?
Or (perhaps) he should have waited for the Berlin Wall to come
down: another few years and he would have been able to walk across
the Potsdamer Platz into West Berlin on his own two legs? But
remember Tiede had applied 12 times for permission to leave and
had been denied permission in each and every case. And would it
be reasonable to expect him to anticipate the fall of the Berlin
Wall? After all, most American political scientists, who were
European specialists, failed to make this prediction. Did Tiede
have a reasonable belief?
The necessity defense has affinities with a plea of self-defense
and like a plea of self-defense, the necessity defense, if successful,
relieves the defendant of any and all guilt. But self-defense
is circumscribed by a number of conditions. If those conditions
are not met, the defense cannot be sustained. A plea of self-defense
is appropriate in those circumstances where the defendant reasonably
believed that it was necessary to take the action he did in order
to avert an immediate and direct threat against his person by
another. Note that there are several features of the plea of
self-defense that distinguish it from the necessity defense.
The threat, for instance, that the defendant sought to avert must
be immediate and direct. Thus, a person is justified in defending
himself against an immediate and direct attack. If he pushed
his attacker down Unlike the spelunkers, Tiede found himself
in a situation where he might plead self-defense. He was threatened
with imminent arrest by East German agents. But under the West
German constitution the crime for which he was threatened with
arrest did not exist. His arrest would then amount to an abduction
of sorts or a kidnapping. To avoid being abducted or kidnapped,
he hijacked the plane. What's wrong with this defense? Or is it
a perfectly good defense?
What about duress? Could Tiede argue that he committed the offense
- no argument there, no argument over the facts of the case -
but he did so as the result of undue pressure and so the court
should acquit him on grounds of duress. The Model Penal Code (2.09(1))
states: "It is an affirmative defense that the actor engaged
in the conduct . . . because he was coerced to do so by the use
of, or the threat to use, unlawful force against his person .
. . that a person of reasonable firmness in his situation would
have been unable to resist." Isn't that exactly the situation
in which Tiede found himself? Wasn't the threat of imminent arrest
by East German agents, a "threat to use unlawful force against
his person." Remember the West German Constitution. The threat
of imminent arrest was a threat to prevent Tiede from travelling
to West Berlin which was a "protected right" under the
West German Constitution. Put your attorney's hat on: what do
you think of this defense? Are you happy with it? What about
the Spelunkers? Might they plead duress, too?
The Model Penal Code defines "duress" quite specifcally,
however: "It is an affirmative defense that the actor engaged
in the conduct charged to constitute an offense, because he was
coerced to do so by the use of, or threat to use, unlawful force
against his person or the person of another, that a person of
reasonable firmness in his situation would have been unable to
resist." Notice that "duress" does not just mean
"being under strain" or "being in a stressful situation."
"Duress" requires that the actor be threatened by another
person who coerces him to do something against his will. This
suggest that Hans Tiede may be on much more solid ground if he
were to try this defense than would be the Spelunkers.
Should Tiede Dispute the Facts of His Case?
As his attorney, how would you advise Hans Tiede on this score?
Could he argue, for instance, that his conduct was not (not really)
a hijacking after all? Remember when he left the plane and was
led away across the tarmack the pilot gave him "a thumbs
up sign." Apparently, by the time the plane landed in West
Berlin, Tiede's relationaship with the crew "was almost cordial."
Indeed, "he had told them them why he did what he did"
and "had passed around pictures of his wife and children."
Perhaps most significantly of all: "it seemed to [Tiede that]
the captain had known all along that he was carrying only a
toy gun." (emphasis added) For it to be a hijacking,
isn't it neccessary for the hijacker to "force" the
pilot to take the plane to a place to which he does not want to
go. What if you could show, as Tiede's attorney, that the pilot
and crew "went along" with Tiede?
Is Tiede, Strictly Speaking, Even a Hijacker?
And what about the argument that the sort of thing that the hijacking
law itself and the international agreements were designed to prevent
was not the sort of thing that Tiede did? Would it be a good
legal strategy to go back and take a look at the law and the international
agreements, to try to find out what those who drafted the laws
and agreements had in mind in the first place? Whom were these
laws designed to protect and what (exactly) were they designed
to prevent? After all, Tiede was not your typical terrorist. And
what about his intentions, his motives? Do they make a difference?
Would you bring up the fact that Tiede simply wanted to be re-united
with his Polish wife and two children? He made no "political"
demands, required no ransom. What difference, if any, do these
"facts" make in the defense and prosecution of this
What was the Verdict?
So what did the jury decide in Hans Tiede's case? How did they
find? Was he "guilty" or "not guilty?" A jury
is a strange creature. It is made up of twelve citizens drawn
from the general population. It is very rare that the jurors will
have had any legal training whatsoever. (Why do we leave such
important decisions in the hands of lay-people?) They listen to
the facts of the case as presented by lawyers and their witnesses
under the supervision of a judge. In Hans Tiede's case the judge
was Judge Herbert Steiner of the United States District Court
of New Jersey. The West Germans did not wish to try the case.
They reminded the Americans that they were still an occupying
force and asked us to convene an American court to try Hans Tiede
and Ingrid Ruske. A special United States District Court was set
up in West Berlin where the trial was held. The jurors were drawn
from the West German population. When the lawyers finished with
their presentations, Steiner instructed the jury in the relevant
rules of law. So in Hans Tiede's case the jurors heard about the
rules pertaining to hijacking, inflicting bodily injury, the taking
of hostages, and depriving persons of their liberty. Then they
were sequestered and they deliberated for two days. Their conclusion
in each instance had to be unanimous.
So what was their verdict?
As Leo Katz tells it, they found Hans Tiede not guilty of hijacking, not guilty of inflicting
bodily injury, not guilty of depriving "other" persons
of their liberty, but guilty of taking a hostage. How could they
find that necessity justified the first three offenses but not
the taking of a hostage? Their verdict appears inconsistent. Do
juries have to be consistent? The answer, quite simply, is "no."
What guarantee was there that they would correctly apply the rules
given to them by Judge Steiner? "None." What prevented
them from acquitting Hans Tiede on three of the four charges merely
on the grounds that he seemed (to them) to be a decent fellow?
"Nothing." A jury's acquittal is above challenge or
reproach. It is free to disregard a rule or a law it does not
like and to acquit a defendant if it pleases. In about one fifth
of all cases a jury acquits a defendant whom a judge would have
convicted, usually because the jurors disagree with some aspect
of the law under which the defendant is charged.
So, is there anything in the Tiede Case that tempts you to change
your mind about the Speluncean Case? Anything? Anything at
all? So, now, how do you decide?
Are the Spelunkers guilty or not guilty?
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